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KEEP OUR COMMUNITIES SAFE ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

ON

H.R. 1932 

MAY 24, 2011 

Serial No. 112–43 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT

ELTON GALLEGLY, California, Chairman 

STEVE KING, Iowa, Vice-Chairman 

DANIEL E. LUNGREN, California 

LOUIE GOHMERT, Texas 

TED POE, Texas 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 

(III) 

C O N T E N T S 

MAY 24, 2011 

Page 

THE BILL 

H.R. 1932, the ‘‘Keep Our Communities Safe Act of 2011’’ .................................. 3 

OPENING STATEMENTS 

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Immigration Policy and 

Enforcement .......................................................................................................... 1 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement .................................................................................................. 21 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 22 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 24 

WITNESSES 

Gary Mead, Executive Associate Director for Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, U.S. Department of 

Homeland Security 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 29 

Thomas H. Dupree, Jr., Partner, Gibson, Dunn & Crutcher LLP, Washington, 

DC 

Oral Testimony ..................................................................................................... 41 

Prepared Statement ............................................................................................. 43 

Douglas E. Baker, Chief of Police, City of Fort Myers, FL 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 55 

Ahilan T. Arulanantham, Deputy Legal Director, ACLU of Southern California 

Oral Testimony ..................................................................................................... 59 

Prepared Statement ............................................................................................. 61 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement ........................................................... 107 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Thomas M. Susman, Director, Governmental Affairs Office, the 

American Bar Association ................................................................................... 181 

Letter from Douglas E. Baker, Chief of Police, Fort Myers Police Department, 

Fort Myers, FL ..................................................................................................... 186 

FY2009-FY2011 YTD Zadvydas Releases by Citizenship, Country, and Criminality ..................................................................................................................... 189

(1) 

KEEP OUR COMMUNITIES SAFE ACT 

TUESDAY, MAY 24, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION

POLICY AND ENFORCEMENT, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:07 a.m., in room 

2141, Rayburn Office Building, the Honorable Elton Gallegly, 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Gallegly, Smith, King, Poe, Gowdy, 

Ross, Lofgren, Conyers, and Jackson Lee. 

Staff present: (Majority) Dimple Shah, Counsel; Marian White, 

Clerk; Tom Jawetz, Minority Counsel. 

Mr. GALLEGLY. I call the Subcommittee to order. 

As reportedly recently in the news, when 16-year-old Ashton 

Cline-McMurray was brutally murdered, his mother took some 

comfort in knowing that her son’s illegal immigrant killers would 

not walk American streets again. 

Under the belief that her son’s killers would be removed, Sandra 

Hutchinson agreed to let prosecutors work plea agreements with 

the purported gang members, several of them illegal immigrants. 

They ultimately pled guilty to lesser charges. According to Mrs. 

Hutchinson, the prosecutors reassured her that after the convicted 

criminals who had killed her son completed their sentences, the 

killers would be deported. 

Mrs. Hutchinson’s son was attacked while walking home from a 

football game in Suffolk County just outside of Boston. He was disabled with cerebral palsy. According to the mother, ‘‘They stabbed 

him, they beat him. They beat him with rungs off the stairs. They 

beat him with a golf club. They stabbed him through his heart and 

then finally through his lungs. They stabbed him in his abdomen 

and he didn’t really have any chance.’’ 

By pleading guilty to lesser charges for manslaughter to second 

degree murder, the four killers did not serve the mandatory life 

sentence without parole that comes with a murder conviction. This 

allowed one of the defendants, Loeun Heng, to be released by the 

Massachusetts parole board last March. Heng, an illegal immigrant, was immediately taken into custody by the U.S. Bureau of 

Immigration and Customs Enforcement after his release. But instead of being deported to his native Cambodia, Heng is back on 

the streets of the United States. Heng, like many other criminal 

2 

aliens, could not be deported because his home country refused to 

take him back. 

Two other men convicted of the crime remain in prison. Both are 

believed to be illegal immigrants. It is believed that the Government will attempt to deport them once released, but the possibility 

remains that they may not be removed. The fourth man convicted 

is already free but is in the United States legally. 

How can this happen? In a word, Zadvydas. A line of cases following the Supreme Court decision from 2001 in Zadvydas v. Davis 

set severe limitations on the ability for the Federal immigration 

authorities to detain immigrants who have been ordered deported 

but who cannot be removed. 

In almost all cases, deportable aliens must be released after 180 

days if they are not deported, no matter how dangerous they are. 

This usually occurs in situations where their home countries delay 

their removal and do not cooperate with the United States Government or the aliens have persuaded an immigration judge that they 

will be tortured if they return home. 

The end result is that the American public is put at risk by nondeportable criminal aliens. Our communities are placed in danger 

as aliens who have serious criminal records and no legal right to 

be here are not placed in detention. Currently almost 5,000 aliens, 

4,000 of them criminal aliens, are being released into the communities each year because of this decision. 

The bill Chairman Smith has introduced will effectively address 

the problems created by the Zadvydas case. As a result, mothers 

such as Mrs. Hutchinson will be able to rest assured knowing 

criminal aliens such as Heng will not be released into the community and the American public will be a safer place. 

The bill, H.R. 1932, follows:] 

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Mr. GALLEGLY. I strongly support H.R. 1932 and will now turn 

to my good friend from California, the Ranking Member, Ms. 

Lofgren, for her opening statement. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

The new majority began this Congress by reading the U.S. Constitution aloud on the House floor. The Due Process Clause of the 

Fifth Amendment to the Constitution says—I quote—‘‘No person 

. . . shall . . . be deprived of life, liberty, or property without due 

process of law.’’ 

For more than 110 years, the Supreme Court has recognized that 

‘‘the Due Process Clause applies to all persons within the United 

States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.’’ 

Today’s bill not only violates this fundamental provision of individual liberty in the Constitution, but it does so at an incredible 

cost to the American taxpayer. ICE already spends approximately 

$2 billion annually on detention alone. 

The Supreme Court has twice warned of the serious constitutional concerns that would be presented if our immigration laws 

authorize the indefinite and possibly permanent detention of civil 

immigration detainees. In Zadvydas v. Davis, the Court said that 

‘‘freedom from imprisonment—from government custody, detention, 

or other forms of physical restraint—lies at the heart of the liberty 

that the [Due Process] Clause protects.’’ 

H.R. 1932 not only ignores the Supreme Court’s constitutional 

warnings, but it goes further than past bills and authorizes the 

prolonged and in some cases mandatory detention of immigration 

detainees throughout their removal proceedings with no limit in 

time, virtually no procedural protections, and no consideration of 

whether detention is even necessary from a safety standpoint. 

During today’s hearing, we will hear about some individuals who 

have been released from an immigration detention and have gone 

on to commit very serious crimes. Those are terrible cases, and the 

holes that they expose in our current system should be addressed. 

But while the title of this hearing suggests it is about how to authorize a continued detention of dangerous people, the bill reaches 

far beyond that. The bill authorizes, with no procedural checks, the 

extremely lengthy detention of asylum-seekers and lawful permanent residents, including those who have won their cases at every 

level but whose cases remain on appeal by DHS. 

I would never argue that our current removal process is perfect. 

We know that thousands of people remain in immigration detention for prolonged periods of time, sometimes far longer than 6 

months or 1 year, while their cases work their way through the 

system. Delays in our overburdened immigration courts are substantial, and ICE’s current enforcement priorities are expected to 

lead to even greater delays. 

So that is one problem we have to solve, but this bill does nothing to fix the underlying problems of inefficiencies in the removal 

process. 

We also know that thousands of people each year spend more 

than 6 months in immigration custody beyond the date of their 

final order of removal solely because their government refused to 

cooperate with repatriation. That is another problem we have to 

22 

solve. We need to improve our ability to remove people in our custody who have final orders of removal. 

I understand that ICE and the State Department recently signed 

a memorandum of understanding that lays out a series of escalating steps that can be taken to influence the decisions of foreign 

governments in this regard. I am hopeful that this MOU will improve the situation, but I am open to hearing whether additional 

authority is needed. Once again, this bill does nothing to fix this 

underlying problem. 

Finally, we know that no matter what we do, there may still be 

some people who we are unable to remove from the U.S. Perhaps 

they are stateless like Mr. Zadvydas himself or perhaps their home 

countries cannot be convinced to accept them. 

In the small number of cases where a person is specially dangerous, I agree with the Chairman that we must have a way to ensure public safety. Federal law permits the involuntary hospitalization of persons suffering from mental illness who should not be released from custody at the end of their prison sentences because 

they present a danger to the public that cannot be mitigated. The 

law provides for appointment of counsel, requires the Government 

to prove its case by clear and convincing evidence before a Federal 

district court judge, and mandates treatment if detention is warranted. 

States also have procedures for civil commitment and involuntary hospitalization, and those procedures generally are available 

for persons being released from immigration detention. 

Our current immigration regulations also provide for further detention in those limited circumstances and require ICE to prove its 

case before an immigration judge. 

If current immigration regulations and the availability of State 

civil commitment proceedings are not sufficient, that may be a 

third problem we have to solve, but we need to design a system 

that is constitutional and narrowly tailored. Today’s bill for indefinite detention in a broad category of cases without a hearing or 

even a personal interview falls short. 

As we began the 112th Congress, we consistently heard two main 

themes from those on the other side of the aisle. First, we must 

honor the Constitution and protect basic civil liberties. Second, we 

need to cut the budget and exercise fiscal responsibility. So it is 

surprising that today’s bill looks at a series of legitimate problems 

within our removal system but proposes an extremely costly and 

largely unconstitutional response that does not even attempt to get 

at the underlying causes. Detaining more people and detaining people longer without any meaningful process to determine whether 

detention is necessary or appropriate is not the answer. 

I look forward to hearing from our witnesses, and I yield back 

the balance of my time. 

Mr. GALLEGLY. I thank the gentlelady. 

At this time, I would recognize the Chairman of the full Committee and the author of this legislation, the gentleman from 

Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

In the 2001 decision of Zadvydas v. Davis, the Supreme Court 

ruled that immigrants admitted to the U.S. and then ordered reVerDate Aug 31 2005 15:11 Aug 11, 2011 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\052411\66539.000 HJUD1 PsN: 66539
23 

moved could not be detained for more than 6 months if there was 

no reasonable likelihood of their being deported. 

In the 2005 case, Clark v. Martinez, the Supreme Court expanded its decision in Zadvydas to apply to immigrants who entered illegally. 

In 2006, the Department of Homeland Security Inspector General reported that thousands of criminal immigrants with final orders of removal were being released into our streets because some 

countries frustrate the removal process. 

The Inspector General found that nearly 134,000 immigrants 

with final orders of removal instead had been released just from 

2001 to 2004. The Inspector General also found that these illegal 

immigrants are unlikely to ever be repatriated, if ordered removed, 

because of the unwillingness of their country or origin to provide 

them the necessary travel documents. 

In addition, thousands of criminal immigrants ordered removed 

have been released. This includes an immigrant who was implicated in a mob-related multiple homicide in Uzbekistan. It also includes an immigrant who shot a New York State Trooper after 

being released. 

According to recent data provided by Immigration and Customs 

Enforcement, nearly 4,000 dangerous criminal immigrants have 

been released each year since 2008. 

In two tragic instances, criminal immigrants released because of 

Zadvydas have gone on to commit murder. Huang Chen was ordered removed for assaulting Qian Wu. China refused to grant 

Huang the necessary documents and he was released as a result 

of Zadvydas. He then committed another assault and was again ordered removed. But again, China refused to issue travel documents. Huang was again released. He went on to violently murder 

Wu. 

Abel Arango served time in prison for armed robbery. Since Cuba 

would not take him back, he was released. He then went on to 

shoot Fort Myers, Florida police officer Andrew Widman in the 

face. Officer Widman never had the opportunity to draw his weapon. The husband and father of three died at the scene. And the police chief from Fort Myers is a witness for us today. 

Just because a criminal immigrant cannot be returned to their 

home country does not mean they should be freed into our communities. Dangerous criminal immigrants need to be detained. 

H.R. 1932, the Keep Our Communities Safe Act, provides a statutory basis for DHS to detain as long as necessary specified dangerous immigrants under orders of removal who cannot be removed. It authorizes DHS to detain non-removable immigrants beyond 6 months, but only if the alien will be removed in the reasonably foreseeable future; the alien would have been removed but for 

the alien’s refusal to make all reasonable efforts to comply and cooperate with the Homeland Security Secretary’s efforts to remove 

him; the alien has a highly contagious disease; release would have 

serious adverse foreign policy consequences; release would threaten 

national security; or release would threaten the safety of the community and the alien either is an aggravated felon or has committed a crime of violence. Such aliens may be detained for periods 

of 6 months at a time and the period of detention may be renewed. 

24 

The bill also provides for judicial review of detention decisions in 

the United States District Court for the District of Columbia. 

This legislation is desperately needed. There is no excuse for continuing to place American lives at risk. 

Thank you, Mr. Chairman, and I will yield back. 

Mr. GALLEGLY. The gentleman from Michigan, the Ranking 

Member of the full Committee, do you have an opening statement, 

Mr. Conyers? 

Mr. CONYERS. I do. Thank you, Chairman Gallegly. 

I would like to join in welcoming our witnesses today. This is an 

important discussion. 

H.R. 1932 expands the ability of the Government to detain immigrants for many years, maybe indefinitely with little or no protections at all. In other words, it is unconstitutional. 

And it is so ironic that this would be coming from the Judiciary 

Committee leadership that is supposed to be protecting the Constitution and constitutional rights of all of our citizens and from 

members of a party that prides itself on limited government and 

the protection of individual liberty. And the Republican Party’s 

pledge was about ensuring limited government and fiscal responsibility, and the Tea Party people among them go even further than 

that. And so now it turns out today that the party of limited government turns out to be the party, in this case, of unlimited government. It is just amazing. 

Intrusive government, they say, must be stopped. Government 

must be downsized. How many Members do I have telling me every 

time we talk that they are for limited government and that they 

want the government out of our business? And yet, here is a bill 

introduced by the Chairman of the Judiciary Committee that 

scraps the Constitution. And I hope that we get into a discussion 

about this. 

Now, the power of government is nowhere more clear than its 

ability to deprive a citizen of its liberty, and that power becomes 

absolute when it can be exercised without any limit and no meaningful checks. And there are so many ways in which 1932, the bill 

before us, offends the rule of law that I can only recite a few of 

them here today. But believe me, I am doing a study. This 2-hour 

hearing is only the beginning of my examination of what is wrong 

with this bill and the thinking behind it. 

Under the bill, thousands of immigration detainees would become subject to mandatory detention, no opportunity for a bond 

hearing, even if they pose no risk to the public and no risk of flight. 

Does that make you feel safer? 

And I appreciate all these terrible stories of some reckless criminal, homicidal person that did all these bad things. So, therefore, 

we need a law that takes away unlimited rights of everybody. 

Sometimes we say that the cost of an approach outweighs its 

benefit, but in this case, that would be too generous because what 

benefit do we get by detaining people without review? Where is our 

constitutional consciousness in a hearing like this? 

People who we suspect will cooperate with the process, who are 

likely to win their immigration cases and will certainly not do us 

any harm. Under the bill before us today, detainees with final orders of removal can be held indefinitely simply by the stroke of a 

25 

pen from the Secretary of Homeland Security or the Director of Immigration and Customs Enforcement. Not only can a person be condemned to indefinite detention without a hearing before a neutral 

body, but it can take place without even a personal interview of the 

detainee. And as I have said before, the writ of habeas corpus to 

challenge the legality of detention is the most fundamental guarantee of our Constitution. 

So I cannot say I am shocked by what I am going to hear today, 

but I am sure getting tired of hearing it week after week after 

month after month all year long, the same old tune in which people 

that want limited government except when they have a bill that we 

throw the Constitution out. 

Habeas, immigration, detention, habeas corpus petitions should 

be filed in the court here. The only possible explanation for limiting 

them to the District of Columbia courts is it will make it harder 

for anybody that does not have a lawyer or cannot speak English 

or is being detained somewhere in Arizona—and I apologize— 

Texas. It is pretty clear what is behind all this. Nothing sophisticated about it. 

And the other explanation is that consolidating all these cases 

around the country into one court will overwhelm the court and 

prevent any swift decisions in accordance with justice. Just recently, Chief Judge Lamberth of the district court said that the 

several hundred habeas petitions filed by Guantanamo detainees 

alone have already overburdened the court so that there will be 

very few cases until summer and the fall. And he said it is as bad 

as I have ever seen it. 

So we need to make sure that our detention and removal system 

works and that we are holding the right people and under right 

conditions and for the right reasons. That is all I am asking here. 

I don’t want anybody that shouldn’t be released let out. I want to 

keep the people that would harm us or our country kept in. So this 

bill doesn’t do that. It doesn’t advance the goals. Instead it just increases the enormously expensive detention system and will remove or limit the few meaningful checks that still exist. 

Thank you, Chairman Gallegly, for allowing my statement. 

Mr. GALLEGLY. I thank the gentleman. 

As I am sure most of you are aware, we have a joint session with 

the Prime Minister of Israel on the floor at 11 a.m., and as a result 

of that, we are going to recess, unfortunately, at 10:45. And we will 

try to get through as many of our witnesses’ opening testimony as 

possible. I would really appreciate your sensitivity to the 5-minute 

time limit on testimony. The text of your entire statement will be 

made a part of the record of the hearing. 

Our first witness today is Mr. Gary Mead. Mr. Mead is Executive 

Associate Director for the Enforcement and Removal Operations, 

U.S. Immigration and Customs Enforcement at the Department of 

Homeland Security. Prior to joining ICE in April 2006, he spent his 

entire Federal law enforcement career with the U.S. Marshal’s Office. Mr. Mead holds a master’s degree and has received two Senior 

Executive Service presidential rank awards. 

Mr. Thomas Dupree, Jr., is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher. Mr. Dupree is an experienced 

trial and appellate advocate. He served in the Civil Division of the 

26 

U.S. Department of Justice from 2007 to 2009, ultimately becoming 

the Principal Deputy Assistant Attorney General. 

Mr. Dupree graduated from Williams College and received his 

J.D. from the University of Chicago Law School. 

Chief Douglas Baker has served as the Chief of Police for the 

City of Fort Myers since January 2009. He joined the Fort Myers 

Police Department in 1986 as a patrolman and was promoted 

through the ranks to his current position. A graduate from the 

216th session of the National Academy in March 2004, Doug received his bachelor’s and master’s degree from Hodges University. 

Mr. Arulanantham—is it close enough? 

Mr. ARULANANTHAM. You can call me ‘‘Mr. Arul,’’ Mr. Chairman. 

Mr. GALLEGLY. Mr. Arul. That works for me. [Laughter.] 

Is Deputy Legal Director at the ACLU of Southern California. 

Prior to joining the ACLU of Southern California, he was Assistant 

Federal Public Defender in El Paso, Texas, as well as a fellow at 

the ACLU Immigrants Rights Project in New York. 

Mr. Arul is a graduate of Yale Law School and a graduate of Oxford University. 

Mr. Mead? 

TESTIMONY OF GARY MEAD, EXECUTIVE ASSOCIATE DIRECTOR FOR ENFORCEMENT AND REMOVAL OPERATIONS, U.S. 

IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY 

Mr. MEAD. Thank you, Mr. Chairman. Chairman Gallegly, Ranking Member Lofgren, distinguished Members of the Subcommittee—— 

Mr. GALLEGLY. Mr. Mead, your mic is not working? 

Mr. MEAD. It doesn’t appear to be. 

Mr. GALLEGLY. Can we move the other microphone over there? 

Bring it in closer and push the button. 

Mr. MEAD. How about that? 

Mr. GALLEGLY. That works perfect. 

Mr. MEAD. Okay. 

Chairman Gallegly, Ranking Member Lofgren, and distinguished 

Members of the Subcommittee, on behalf of Secretary Napolitano 

and Director Morton, I would like to thank you for the opportunity 

to discuss non-removable aliens and the impact of the Supreme 

Court decision, Zadvydas v. Davis, on ICE operations. 

As the largest investigative arm of the Department of Homeland 

Security, ICE utilizes its immigration and customs enforcement authority to protect America and uphold public safety. On the whole, 

ICE is quite successful. In fiscal year 2010, ICE recorded the removal of more than 392,000 illegal aliens. Half of those removed, 

more than 195,000, were convicted criminals, the most ever removed from our country in a single year. 

There are also challenges. Under Zadvydas, many aliens with 

final orders of removal may not be detained beyond a period of 6 

months. To hold such aliens, there must be a significant likelihood 

of removal in the reasonably foreseeable future. Only a small number of aliens who pose certain health and safety risks may continue 

to be detained for a prolonged period of time. 

27 

These challenges have required changes in the way we hold 

aliens and conduct what we call post-order custody reviews. They 

have also required us to strengthen our relationship with the State 

Department in order to more effectively work with foreign governments to overcome delays or refusals in obtaining travel documents. 

ICE conducts post order custody reviews for all aliens who have 

received a final order allowing their removal by ICE but, for one 

reason or another, there is not a significant likelihood of removal 

in the reasonably foreseeable future. These are done to ensure that 

detention is justified and in compliance with governing laws and 

regulations. The conclusion reached in each case is subject to an intensive fact-specific inquiry and officers use these facts and their 

own experiences and knowledge regarding a given country to make 

the determination as to whether removal is significantly likely in 

the reasonably foreseeable future. 

Some of those aliens who are released due to Zadvydas have 

criminal records that include convictions for illegal activity ranging 

from property offenses to homicide. Under the regulations, ICE 

may continue to detain an alien whose release would pose a special 

danger to the public, if certain conditions are met. 

While ICE can continue to detain specially dangerous aliens, ICE 

cannot indefinitely detain all criminal aliens under the law. Since 

the beginning of 2009, ICE has made 12,781 individual releases of 

aliens subject to Zadvydas. While the number of individual detainees re-booked into ICE custody, post-Zadvydas release is relatively 

low overall at 7 percent. ICE is deeply concerned by those criminal 

aliens that commit crimes after their Zadvydas release. 

While crimes by aliens are of significant concern, ICE is not in 

the business of holding detainees for indefinite lengths of time. As 

a practical matter, immigration detention has a finite endpoint in 

most cases as the vast majority of aliens are able to be removed 

in a matter of days or weeks. 

Ten years ago, Zadvydas addressed indefinite detention in the 

primary context ICE faces it today where ICE is unable to work 

with aliens and foreign governments to obtain travel documents. 

Getting foreign countries to allow repatriations remains a challenge for us today. 

There are few countries that refuse to accept their nationals who 

are under final orders of removal, and there are some countries 

that often delay the removal process. These refusals or delays have 

often forced ICE to release aliens subject to Zadvydas. My longer 

remarks lay out some of the countries that present the greatest 

challenges in this area. 

ICE has worked with the State Department to find solutions to 

address the timely issuance of travel documents. In an effort to decrease any delay in the removal process, in April 2011 ICE and the 

State Department’s Bureau of Consular Affairs signed a memorandum of understanding, or MOU, establishing ways in which the 

State Department and the Department of Homeland Security will 

work together in this area. 

The MOU also established procedures for meeting and working 

with countries that delay or refuse repatriation of specific nationals. 

28 

Though this work is difficult, it has had some results. ICE and 

State recently held promising discussions with officials from the 

Peoples Republic of China regarding repatriation issues, and ICE 

looks forward to continuing to work with the PRC. 

ICE also completed draft demarches to nine countries requesting 

expeditious issuance of travel documents for aliens. 

The removal of criminal aliens consumes time and poses challenges. Every alien’s removal requires not only cooperation within 

the U.S. Government but also the cooperation of another country. 

While ICE attempts to remove criminal aliens under the current 

law in light of the Zadvydas decision, aliens whose removal is not 

necessarily foreseeable, outside of the limited circumstances set out 

in regulations, must be released from ICE custody while we continue working to effectuate their removal. 

I thank the Committee for its support of ICE and our law enforcement mission. Your support is vital to our work. Your continued interest in and oversight of our actions is important to the men 

and women at ICE who work each day to ensure the safety and security of the United States. 

I would be pleased to answer any questions you have at this 

time. 

[The prepared statement of Mr. Mead follows:] 

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Mr. GALLEGLY. Thank you very much, Mr. Mead. 

Mr. Dupree? 

TESTIMONY OF THOMAS H. DUPREE, JR., PARTNER, 

GIBSON, DUNN & CRUTCHER LLP, WASHINGTON, DC 

Mr. DUPREE. Good morning. Thank you, Mr. Chairman, for inviting me to address an important legal issue that has immense, practical, real-world consequences: the executive branch’s authority to 

detain dangerous aliens. 

I served as Principal Deputy Assistant Attorney General under 

President Bush and am very familiar with the flaw in our Nation’s 

laws that is the subject of today’s hearing. Indeed, this is a problem 

that is well known within legal and law enforcement communities. 

Although Congress in 1996 had granted the executive the power 

to detain removable aliens for extended periods, the courts have interpreted the law so as to require their release after a mere 6 

months unless the Government can show that their removal is reasonably foreseeable. In many instances, however, removal is not 

reasonably foreseeable. The alien’s country of origin may not take 

him back. Our obligations under the Convention Against Torture 

may not permit our removing him to his country of origin. There 

may be delays in obtaining the necessary travel documents, or the 

alien’s country of origin may simply be unknown. 

The consequence is that, under current law, the Government is 

compelled to release into our communities murderers, child molesters, and other predators who pose a clear and direct threat to public safety and national security. 

The problem arises from the Supreme Court’s decision in 

Zadvydas v. Davis. In Zadvydas, the Supreme Court construed the 

post-removal period detention statute to incorporate a presumptive 

6-month limit on the detention of removable aliens. According to 

the Court, once an alien has been detained for 6 months under the 

statute, he must be released unless the Government can establish 

that his removal is reasonably foreseeable. 

Four years later, the Supreme Court expanded the sweep of 

Zadvydas in Clark v. Martinez where it held that the 6-month limit 

applied to inadmissible aliens, those who never had any legal right 

to enter the United States in the first place. 

The Court concluded by acknowledging the public safety concerns 

raised by the Government and by inviting Congress to amend the 

statute. In fact, the Court noted that shortly after Zadvydas was 

decided, Congress passed the USA PATRIOT Act which authorized 

continued detention of aliens whose removal was not reasonably 

foreseeable and who presented a national security threat or had 

been involved in terrorist activities. 

Soon after Zadvydas was decided, Attorney General John 

Ashcroft expressed deep concern that the ruling threatened public 

safety. He said that many of the criminal aliens who would be set 

free as a result of the decision ‘‘have extensive histories of brutal 

violent crime and pose a danger to society.’’ He added that he was 

‘‘especially concerned that these criminal aliens may re-enter and 

prey upon immigrant communities in the United States.’’ 

The Attorney General’s grim forecast has proven accurate. The 

impact of Zadvydas was immediate and substantial. One study 

42 

found that in the 2 months following Zadvydas, 829 criminal aliens 

were released into the United States and thousands more have 

been released in the years that followed. 

The impact of Zadvydas continues today as the Department of 

Homeland Security is legally compelled to set loose individuals who 

are criminally violent and very likely to commit additional crimes 

once released. A 2007 audit conducted by the Inspector General of 

the Department of Justice found that out of a sample of 100 criminal aliens, 73 had an average of six arrests each after being released. According to the Inspector General, the study ‘‘produced results that, if indicative of the full population of criminal aliens 

identified, suggest that the rate at which criminal aliens are re-arrested is extremely high.’’ 

Congress has the power to fix this problem. The Supreme Court 

has never denied Congress the constitutional authority to provide 

for extended periods of detention. Quite the contrary. The Supreme 

Court has invited Congress to legislate in this area and to amend 

existing law in a way that clarifies the circumstances under which 

extended detention is permissible and that specifies the procedures 

that the executive must follow in approving detention for longer periods. 

The proposed legislation will protect the American people by giving the Department of Homeland Security and the Department of 

Justice the legal tools they need to keep these dangerous predators 

off our streets. At the same time, the bill appropriately addresses 

potential due process concerns by narrowing the sweep of the statute to a small segment of particularly dangerous individuals. It 

provides for regular and individualized assessments of the need for 

continued detention by high-level officials within the Department of 

Homeland Security, as well as the opportunity to have those assessments reviewed by a Federal court. 

There can be no question that this bill will clarify the law. It will 

expressly vest the executive with powers necessary to keep dangerous aliens out of our communities, and it will make America 

safer. 

For all these reasons, I support the Subcommittee’s efforts to address this critical public safety issue, and I look forward to your 

questions. 

[The prepared statement of Mr. Dupree follows:] 

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Mr. GALLEGLY. Thank you, Mr. Dupree. 

Chief Baker? 


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TESTIMONY OF DOUGLAS E. BAKER, CHIEF OF POLICE, 

CITY OF FORT MYERS, FL 

Mr. BAKER. Good morning, Mr. Chairman. 

In brief, if I could take you back to July 18th of 2008 at 2 o’clock 

in the morning, a handful of police officers were on a foot patrol 

in the City of Fort Myers as businesses and establishments closed. 

One of our officers, Officer Andrew Widman, was dispatched to a 

domestic violence incident in which it gave the description of an individual who had been in a fight with his girlfriend. Officer 

Widman identified the individual, and as he walked across Main 

Street to step onto the Patio de Leon area, Mr. Arango pulled a 9 

millimeter handgun from his waistband and shot Officer Widman 

once in the face, killing him instantly. Officer Widman never had 

an opportunity to defend himself or pull his weapon. 

Officer Widman left behind a wife and three children under 5 

years old. He was just completing his first year of service with the 

Fort Myers Police Department. 

When examining Mr. Arango and where he came from—in addition, officers from the police department engaged for the next 15 

minutes in a gun battle with Mr. Arango, and Mr. Arango was subsequently shot and killed also in downtown Fort Myers. 

When we look at where Mr. Arango comes from and his background, in 1998 Arango was convicted and sentenced to a 6-year 

prison term for armed robbery and four 5-year terms of carrying a 

concealed firearm, burglary, two counts of grand theft. Immigration 

and Naturalization Services placed a detainer on Abel Arango for 

him to be detained by INS upon a release from prison. 

In 2000 or 2001 Arango was ordered to be deported back to Cuba 

after being sentenced for armed robbery in Florida. Abel Arango 

appealed his deportation order and the Bureau of Immigration Appeals denied his appeal, and his deportation order remained in effect. 

On March 1, 2004, upon being released from Krome Detention 

Center in Miami, Abel Arango was not detained by Immigration 

and Naturalization Services or Immigration and Customs Enforcement and was unleashed on the Florida citizens. 

On May 16, 2008, Abel Arango was arrested again and booked 

into the Lee County jail for five felony counts relating to the trafficking and sale and possession of cocaine. The filing within 24 

hours, on May 17, 2008, Abel Arango was released from Lee County jail by posting a $100,000 surety bond. 

It takes us back to July 18, 2:30 in the morning after walking 

around of Lee County Justice Center at or around 2 a.m., Abel 

Arango used a gun to violently and cowardly assassinate Officer 

Widman, a Fort Myers police officer. 

On May 9th of this year, Florida Governor Rick Scott signed into 

law the Andrew Widman Act which will enhance officers’ safety by 

providing an additional blanket of security by authorizing a judge 

to issue a warrant for the arrest of a probationer or offender who 

has violated the terms of probation or community control and allow 

for the judge to immediately commit serious offenders on the likelihood that the person will be imprisoned for the violation. 

54 

Had the judge been able to immediately charge Arango with the 

probation violation at the time of arrest, Officer Widman’s murder 

may have been avoided. 

Three other officers in Florida were shot and killed since January under similar circumstances. 

We applaud House Judiciary Committee Chairman Lamar Smith 

for addressing the ruling and taking the steps he is taking to correct this injustice. I wholeheartedly agree with the Chairman 

Smith when he was quoted as saying, ‘‘It is outrageous that thousands of dangerous immigrant criminals have been released to our 

streets. Just because a criminal immigrant cannot be returned to 

their home country does not mean that they should be freed into 

our communities. Immigrant criminals should be detained and deported.’’ 

We have a responsibility to our citizens, our legal residents, visitors, and law enforcement personnel to ensure that these dangerous criminal aliens are not allowed to re-enter into the communities within the United States of America. Deportation or detention must be adhered to rather than allow them to go free. 

Thank you for allowing me to have the opportunity to address 

the Committee. 

[The prepared statement of Mr. Baker follows:] 

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Mr. GALLEGLY. Thank you very much, Chief Baker. 

Mr. Arulanantham? 


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TESTIMONY OF AHILAN T. ARULANANTHAM, DEPUTY 

LEGAL DIRECTOR, ACLU OF SOUTHERN CALIFORNIA 

Mr. ARULANANTHAM. Thank you, Mr. Chairman. 

As the Deputy Legal Director of the ACLU of Southern California, I have spent much of the last 7 years representing immigrants facing prolonged and indefinite detention by the Department of Homeland Security. My clients come from all around the 

world. Some fled persecution or even torture based on their race or 

religion. Others came here for economic reasons seeking a better 

way of life, and still others did not choose to come at all. They 

came as infants when their parents brought them here. 

But they have all had one thing in common. All were told by 

someone at some point along the way that America is a land of 

freedom and of opportunity. As the Supreme Court has stated it repeatedly, in our country liberty is the norm and detention is the 

narrowly limited exception. 

But today’s bill threatens that American tradition because it 

would dramatically expand an immigration detention system that 

is already fundamentally broken. Although much of the discussion 

today has focused on people convicted of crimes, about half of the 

people in immigration detention have never been convicted of a 

crime or they were convicted of very minor convictions for which 

they received little or no jail time or very old convictions and have 

long since rebuilt their lives. About 84 percent of these detainees 

have no attorney to represent them, and thousands of them are detained for years at a cost of $45,000 per detainee per year to the 

taxpayer. 

The most serious problem with H.R. 1932 is that it would expand 

that detention under the system in two significant ways. 

First, the bill would reverse a number of Federal court decisions 

requiring the Government to provide bond hearings in front of immigration judges to people subject to prolonged detention while 

their cases are pending. 

And then second, as we have been discussing, the bill would give 

DHS vast new authority to indefinitely detain people convicted of 

ordinary crimes, crimes like writing a bad check or two petty 

thefts. The bill would permit their detention far beyond their sentences potentially for their whole lives, even if they can never be 

removed. 

Now, I have represented many good people who would not have 

won their release had this bill been the law. Take, for example, 

Ahilan Nadarajah, who shares my name. He is a young man I first 

met nearly 7 years ago. He came here fleeing the worst form of persecution, torture, at the hands of the Sri Lankan army during the 

height of that country’s civil war. He arrived at our borders, applied for asylum, but spent the next 4 and a half years in immigration detention. He repeatedly won his case, twice in front of the immigration judge and even in front of the Board of Immigration Appeals, but the Government kept him detained while it appealed his 

case. He lost half of his 20’s in immigration detention. While other 

people finished school, got jobs, raised families, he sat there at 

$45,000 a year cost to the taxpayer. 

Now, I recognize that not all detainees are like him. Some may 

be extremely dangerous, and the Constitution permits the GovernVerDate Aug 31 2005 15:11 Aug 11, 2011 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\052411\66539.000 HJUD1 PsN: 66539
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ment to detain people without trial for prolonged periods of time. 

But it allows such detention only under narrow circumstances 

where there is both a special justification for the detention beyond 

the general need to protect the public from crime and rigorous procedural protections designed to ensure that the detention is actually necessary. 

And that constitutional rule, Chairman, makes good sense. In 

our legal system, it is criminal prosecutors and judges who have 

the most knowledge about how to protect the public. If Ahilan or 

any other immigrant commits a crime, he can be prosecuted to the 

full extent of the law, and in the cases we have talked about today, 

a sentencing judge with the information available made a decision 

that a particular sentence was the appropriate sentence to protect 

the public. 

Now, in those rare instances where criminal prosecution is not 

sufficient, both the Federal Government and the States already 

have authority to indefinitely detain people or at least to detain 

them for prolonged periods of time if they have a mental condition 

that makes them especially dangerous. Sex offenders are detained 

under these laws in the current system. And when it comes to national security, Congress has passed legislation authorizing the 

prolonged detention of certain non-citizens as national security 

threats. 

But H.R. 1932 is not limited to such individuals. It authorizes 

prolonged detention for broad categories of non-citizens who have 

no convictions at all. It irrationally prevents immigration judges 

from even deciding whether their detention is necessary, and its indefinite detention provisions would authorize potentially permanent detention. 

Ahilan Nadarajah—I spoke with him last week. He would not 

have gotten out if this bill had been law. I spoke to him in English. 

He is doing really well. He has a driver’s license. He has a job. He 

has a green card. 

I came here today for him and for thousands of other immigrants 

like him because they are protected by our Constitution too. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Arulanantham follows:] 

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Mr. GALLEGLY. Thank you very much. 

At this time, I would yield to the gentleman from Texas, the 

Chairman of the full Committee and the sponsor of this legislation, 

for opening questions. 

Mr. SMITH. Thank you, Mr. Chairman. 


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Mr. Mead, let me direct my first question toward you. And I am 

looking at the most recent figures for the Zadvydas releases of 

criminal aliens, and I just want to confirm this is accurate. I have 

in fiscal year 2009 almost 4,000 criminal immigrants were released 

into our communities. Is that about right? I have 3,847. 

Mr. MEAD. Yes, sir, that is about right. 

Mr. SMITH. And is the figure for fiscal year 2010 accurate, 3,882, 

almost 4,000 released then? And then for fiscal year 2011, we are 

on track to maybe even exceed 4,000 criminal immigrants released 

into our communities. 

Mr. MEAD. Yes, Congressman, that is correct. 

Mr. SMITH. The way I figure it, considering the recidivism rate 

is about 40 percent and those are just the ones who are convicted 

again, we have thousands and thousands of crimes committed 

every year that arguably don’t need to be committed if, in fact, we 

detain these individuals for longer in prison. Is that accurate? 

Mr. MEAD. Yes, sir. I would just like to say that one of our highest priorities is to apprehend and remove criminal aliens who pose 

a threat to our communities, and every decision that we make, 

whether it is initial detention or detention under Zadvydas, is 

based on a full examination of their criminal history. And one of 

the things we do consider is—— 

Mr. SMITH. My point is that there are thousands of additional 

crimes committed every year that could be prevented were these 

individuals detained. 

Mr. MEAD. That could be true, sir, yes. 

Mr. SMITH. Thank you. 

Mr. Dupree, let me ask you. You have studied the bill, looked at 

the language. Do you feel that the bill is sufficiently broad to prevent some of these crimes from occurring, yet sufficiently narrow 

as to be constitutional? 

And before you answer your question, I know we have had a 

Member of the full Committee say this morning that there was no 

judicial review. If individuals will look on page 14 of the bill, they 

will find a judicial review. 

But in any case, what is your opinion of the bill, again broad 

enough to prevent the crimes, narrow enough to be constitutional? 

What do you think? 

Mr. DUPREE. I think the bill strikes an appropriate balance. On 

one hand, there is no question that this bill will make our country 

safer. As you noted a moment ago, there are crimes that will be 

prevented if this bill passes. This bill is targeted at an exceedingly 

narrow segment of particularly dangerous offenders. Those people 

will be kept off our streets. Our communities will be safer as a result. 

On the other side of the coin, the bill contains appropriate procedural protections. It allows for Federal court review. It allows for 

individualized assessments of dangerousness by a high-level DHS 

official, and it sweeps narrowly. One of the concerns the Supreme 

Court expressed in Zadvydas was that the statute, as it currently 

exists, could be construed to sweep broadly and could encompass, 

for example, people who overstay a tourist visa. This bill is much 

more narrowly targeted. It focuses on individuals who have committed violent crimes, who are likely to commit violent crimes in 

98 

the future, or who should be detained for another special circumstance or particularly compelling reason. 

Mr. SMITH. Thank you, Mr. Dupree. 

Chief Baker, thank you for being here. I appreciate what you and 

your department have been through recently. 

I am curious in regard to the released criminal immigrants. We 

are talking about 4,000 a year, and I know you have had several 

tragedies occur in Florida as a result of the release of these types 

of individuals. Is there any tracking system available today? And 

in your opinion, if there is not, could a tracking system be implemented whereby you could access a Federal database or be alerted 

to the presence of these individuals? 

Mr. BAKER. Within the City of Fort Myers, we track every prisoner releasee as they return to the city. We meet with their probation officer—and this is on the Federal, State, and even on the 

county—examining whether or not they are living up to the conditions or standards of their probation and then to provide them 

other social service direction that they can do to better their lives 

and not to return to a life of crime. 

In recent, we know of about 900 illegal aliens that have been involved in criminal activity that have been sentenced and returned 

up and down our area of the coast of Florida, our southwest Florida 

area. So we know that we have individuals that do fit that capacity. And within the city limits, we do monitor their activity to ascertain whether or not they fit that parameter—they are following 

their probation conditions. 

Mr. SMITH. Let me also ask you—I assume you think this bill 

would help prevent some of those crimes from occurring. 

Mr. BAKER. I am sorry. I had a hard time hearing you. 

Mr. SMITH. You feel that this legislation would help prevent 

some of those crimes from occurring. 

Mr. BAKER. Yes, sir, I do. You know, what we are looking here 

is from a standpoint of prevention. We are trying to reduce or 

eliminate future victims and future crimes. It is unfortunate, obviously, from our circumstances on our loss of Officer Widman, but 

we believe if this bill would have been in place, it would have 

greatly enhanced Officer Widman’s outcome because the individual 

would not have been out on the streets to begin with. And when 

we look at other violent crime that occurs—and I will speak specifically within Fort Myers, but we are not unique. That violent crime 

occurs across the country in every community, and our goal is to 

provide safe measures to our communities and to our police officers 

that they go out and risk their life each and every day. So I believe 

that this would greatly enhance our safety and the community’s 

safety. 

Mr. SMITH. Okay, thank you, Chief Baker. 

Mr. BAKER. Thank you, sir. 

Mr. SMITH. Mr. Arul, a question for you. You have mentioned 

several times in your testimony a minute ago that it costs $45,000 

a year to detain some of these individuals. I do not know if it is 

$45,000 or $37,000, but it is many thousands of dollars. 

Don’t you feel that the widow of Officer Widman would be happy 

for the Government to spend $45,000 to have prevented the death 

of her husband? As far as that goes, I suspect she would have been 

99 

happy to have spent $45,000 of her own money to prevent the 

death of her husband who was an officer in the Fort Myers police 

force. 

So it seems to me that we may make a mistake by putting a 

price on it rather than valuing what a life is worth. And I would 

only suggest to you that again it may be cheap for the price to detain some of these individuals who go on and commit all the type 

of horrific crimes that you and I could cite. 

But let me ask you a question. And that is, in your testimony 

you mention that under this bill, it gives indefinite power to detain 

individuals. I know you are familiar with the legislation. I don’t 

think we give indefinite power. We talk about very limited special 

circumstances. Don’t you think it is possible that the Supreme 

Court would hold that because those special circumstances are sufficiently narrow, that it might be constitutional? 

Mr. ARULANANTHAM. Thank you, Mr. Chairman. Let me answer 

the second part first. 

The bill authorizes the potentially indefinite detention of people 

who committed aggravated felonies. On page 9 to 10 is where it is. 

That category sounds bad, but you don’t have to either have a felony and it does not have to be aggravated to be an aggravated felony under the immigration law. 

Mr. SMITH. And in any case, there is judicial review possible 

after 6 months. 

Mr. ARULANANTHAM. Judicial review is a separate question, Mr. 

Chairman. The question is you can be indefinitely detained for, for 

example, writing a bad check or failing to comply with a court 

order or two petty thefts or tax evasion. I mean, all of these can 

be aggravated felonies under the immigration law, and so the DHS 

would have the authority under this bill to make the determination 

that such individuals could be detained indefinitely. And that I 

think is not consistent with Zadvydas. To go to your other point, Mr. Chairman, I feel awful when I 

hear that story. You know, I feel awful about it. Of course, I would 

certainly pay that amount of money to prevent a death unnecessarily. 

But the question is what kind of procedures have to be in place 

to make sure that this doesn’t happen and—— 

Mr. SMITH. Let me just acknowledge I think you and I have a 

different philosophy on that. To me, we have, because of judicial review, an out for individual cases as you just mentioned. But beyond 

that, it just seems to me that considering the thousands of preventable crimes that occur every year, including the murder of police 

officers, that we ought not be so concerned about the $45,000 a 

year. We ought to be more concerned about the safety and lives of 

innocent Americans. 

I am not denying that you don’t care—or I am not suggesting 

that you don’t care about innocent Americans and the lives of innocent Americans. I am just simply saying I think the bill does what 

it is intended to do, and that is to prevent some of these tragedies 

from occurring. But I understand your point of view as well 

Thank you, Mr. Chairman. Am I the Chairman? 

I think Chairman Gallegly has left, and since I am the last Member standing and since we are due on the House floor momentarily, 

100 

we will need to recess for an hour. Thank you all for your patience 

and I hope a number of Members will return in about an hour. And 

we stand in recess. 

[Recess.] 

Mr. GOWDY [presiding]. The Committee will come to order. 

I want to thank our four witnesses for your patience. It is not 

usual for us to have a joint session and such an honored speaker 

as Mr. Netanyahu. So thank you for indulging us. 

Without further ado, I will recognize the gentlelady from California, Ms. Lofgren. 

Ms. LOFGREN. Thank you very much. Let me join in our apologies 

to the witnesses. Certainly we don’t often have a joint session of 

Congress, and it was important that all the Members be present 

for the Prime Minister of Israel, who gave a terrific speech by the 

way. 

You know, I want to explore a little bit about the court decisions 

and the people involved. We have heard of horrific cases where people—for example, the officer. I mean, that is a terrible thing. But 

this bill does not target criminals I think. 

Mr. Arulanantham, your testimony was that individuals who had 

not committed any criminal offense would be caught up in this type 

of situation. Do you think that having reviewed the cases, that the 

bill would authorize or mandate prolonged detention without a 

bond hearing? And would that possibly satisfy the Court, the due 

process requirements in the Constitution in your judgment? 

Mr. ARULANANTHAM. Thank you, Congresswoman. You did hear 

me correctly about that. Portions of the bill concerning prolonged 

detention, which are sort of farther down in the legislation—but 

they are there—would authorize the—would reverse a set of Court 

decisions that have required that when you have a prolonged detention, while a case is pending, the simple requirement that the 

person get a bond hearing in front of an immigration judge to be 

considered for release, that that requirement then would no longer 

be in place under this bill. 

So, yes, for example, I had dinner last Sunday—it was 2 days 

ago—with a Christian minister from Indonesia who was my client. 

He was detained for 2 and a half years until the Court decision ordered his release on bond while his case was pending. He has now 

won his motion to reopen. He was never convicted of any crime certainly. 

There are other examples in my testimony. There was a Tibetan 

monk named Lobsang Norhbu. He was detained about 10 months, 

obviously also never convicted of any crime, not a dangerous individual, not a risk of flight. But under the bill, he would not have 

a right to a bond hearing in front of an immigration judge. Just 

to get your day in court, do you have to lock me up while my case 

is pending? And of course, they can often take years. So that is a 

very serious problem under this bill. It has really nothing, in a 

sense, to do with the terrible cases that we are discussing today, 

but this bill would result in the detention of those people for prolonged periods of time at great taxpayer expense. 

Ms. LOFGREN. I am interested, Mr. Baker, whether we can—I assume that you are not necessarily in favor a Christian minister 

who has not committed a crime being held for 2 and a half years 

101 

without bond or review. I don’t want to put in your mouth, but I 

assume that is not what you are seeking here. 

Mr. BAKER. You would be correct on that. 

Ms. LOFGREN. So I am wondering whether we couldn’t narrow 

this in such a way that we really target the kind of people you are 

talking about that pose a threat to us. What are your thoughts on 

that? What would you advise on that? 

Mr. BAKER. My focus here—my understanding from my presence 

here—is to put a face and name of some of the victims that have 

been victimized to the point of murder of police officers. 

Ms. LOFGREN. And you have done that very well, and it is important that you did do that. 

Mr. BAKER. That is what my focus is. You know, even before 

coming here, my idea is to hold those accountable that need to be 

held accountable. And I can certainly understand several of the individuals the gentleman here to my left has talked about. That is 

not my focus or my purpose. My focus and purpose is hold those 

individuals accountable for their criminal acts that they hold 

against law enforcement and the communities, obviously, that we 

serve. 

And I am sure that position that you hold as well, you are fully 

aware of these types of incidents. They are not special to Fort 

Myers. They are across the country. And the level of accountability 

needs to be there so that these individuals do not come back out 

and continue with a life of a crime and continue with violent acts 

toward us. 

Ms. LOFGREN. Right. 

Mr. Mead, one of the concerns that we have is that there are nations that simply won’t accept back their nationals when there has 

been an order for removal. And right now, all we have got is a 

blunt instrument where we could eliminate all visas for that country. But then you end up punishing Americans. I mean, you have 

got an American who is married to somebody from that country. 

You know, it is really hard. Well, we don’t use that tool because 

it is too blunt an instrument. 

One of the things, when I was on the Homeland Security Committee, that we talked about was making—the State Department 

would have to do this, not Homeland Security because it is a diplomatic issue, but to make the visa removal system for diplomats 

only so that we wouldn’t be hurting Americans who are trying to 

get their husband or wife in or the like, but we would actually 

catch the attention of a foreign nation. What do you think about 

that as a possible idea? Maybe I can’t ask you if that hasn’t been 

cleared by OMB. But does the Department have a position on that? 

Mr. MEAD. Well, I think the new MOU with Consular Affairs at 

State gets right at what you are suggesting, and that is to have a 

graduated process that begins with demarche, moves to direct conversation with ambassadors, then considers visa sanctions, whatever they turned out to be, followed by financial sanctions. So to 

that extent, I certainly agree that we need to not, as you said, use 

a blunt instrument approach to this, that we need to follow a process that makes sense to everyone. And I think the new MOU does 

that and the fact that it also sets as a target a 30-day average time 

102 

for issuing travel documents gives us a nice benchmark to work 

against. 

Ms. LOFGREN. Have we used that new MOU yet? Or it is too 

new? 

Mr. MEAD. Well, actually we have done some things pursuant to 

it. There have been meetings between Director Morton and the 

State Department with officials from Bangladesh. That has produced five travel documents already. That is within the past couple 

of weeks. We have seen some positive results already with Pakistan, and just last week we had some very good results out of 

China where they have agreed to pilot electronic travel documents, 

use a standard application for travel documents, and even consider 

charter flights to return multiple people rather than what we do 

now, which is one individual at a time. So I think that having the 

joint effort with State, having a clear set of principles in the MOU 

will help us considerably as we move forward. 

Ms. LOFGREN. I would ask the indulgence of the Chair for an additional quick minute, if I could. 

I raise this issue because it has been raised to me repeatedly by 

diplomats and others where we deport gang members. I am not 

against that. I am for that. But we don’t always notify or prepare 

the receiving country. I mean, they are not arguing that we 

shouldn’t deport gang members. We all want to do that. But without adequate notice to the receiving country, it has caused some 

crime problems in their own countries. And I am wondering if 

there is a way to notify or work with, for example, some of the 

Latin American countries now have a huge gang problem that they 

didn’t used to have that has really been exported from the United 

States—whether there is an ability to articulate this more carefully 

with receiving countries. 

Mr. MEAD. It is an issue that we are very concerned about, particularly as we move toward more criminal aliens, and particularly 

in terms of Central America, we do have very specific requirements 

for each country in terms of what criminal history information they 

require, how much notice they need in terms of gang members coming back, and we also make available to them all of the appropriate 

information when they interview their potential citizens for return. 

So you are correct. We do have an obligation to provide that information, and we try to do that. 

Ms. LOFGREN. Thank you, Mr. Chairman, for the additional. I 

have been wanting to ask that question for quite some time. 

Mr. GOWDY. Yes, ma’am. Thank you. 

The Chair will recognize himself. 

Chief Baker, first of all, thank you for your service, and if you 

would be gracious enough to let Officer Widman’s widow and three 

children know that they have our continuing, undying appreciation 

for the sacrifices that he made for our public safety. If you would 

let them know that all the way to South Carolina and Washington, 

how grateful we are and his family. 

Mr. BAKER. Thank you for your comments, and I will be sure to 

contact Mrs. Widman, as well as his parents. 

Mr. GOWDY. Thank you, Chief. 

Mr. Dupree, for those who may not be as intimately familiar with 

the process, assume for the sake of hypothetical that an alien is 

103 

convicted in State or Federal court, a sentence is imposed, and that 

sentence is satisfied. What happens? 

Mr. DUPREE. Once he’s done, in many cases detention jurisdiction 

will shift from the State or Federal correctional authorities and he 

will be held in immigration custody. At some point during this 

process, in all likelihood, he may be put in removal proceedings. If 

and when that happens, there is a timetable concerning how quickly the Government is obligated to actually remove that alien from 

this country under the Zadvydas decision that we have been discussing as well as the relevant statutes. In some cases, the Government is able to effect the removal of those aliens very quickly. In 

other cases, it can take longer for a number of different reasons, 

including the difficulties that historically we have encountered with 

repatriation from some countries. 

Mr. GOWDY. Mr. Mead, I am looking at the list of countries that 

have been difficult to work with with respect to accepting back 

their citizens who commit crimes in our country. Can you tell me 

specifically, for instance, what is being done in Cambodia? 

Mr. MEAD. I can’t speak specifically to Cambodia today, but all 

of those countries are countries that under the new MOU with 

State we will pursue this graduated approach and Cambodia would 

certainly be one that we would begin this effort to either use 

demarches, use conversations with the ambassadors and the like to 

move toward better issuance of travel documents. 

Mr. GOWDY. All that is great and wonderful and I am a huge fan 

of conversations. I am more of a fan of consequences. So at what 

point will we begin to impose consequences on countries who either 

receive foreign aid or wish to have a relationship with our country 

when they don’t accept their citizens back who have victimized our 

citizens? At what point will it move beyond a memorandum of understanding or memorandum of agreement and a conversation to 

real consequences? How quickly are we going to get there? 

Mr. MEAD. It is hard to put a date on that in terms of number 

of days, but that would be something that would be determined 

jointly between the Department of Homeland Security and the Department of State as to when, as you said, we moved past demarche or conversation with ambassadors to visa sanctions and aid 

sanctions. 

Mr. GOWDY. Are you in favor of expediting the conversation so 

we can get more quickly to the consequences? 

Mr. MEAD. I am in favor of doing whatever we can do to increase 

the issuance of travel documents because ultimately that is the 

way to remove criminal aliens from the country that historically 

have been difficult to remove. 

Mr. GOWDY. Well, it seems like some of these countries do either 

have relationships with us or aspire to have relationships with us. 

I find it befuddling why that would not be a condition of a relationship, that you actually take your citizens who commit crimes 

against our citizens back to your country. 

Mr. MEAD. And I agree that we need to work with them to make 

sure that they honor their international obligations. Every country 

has an obligation to take back their citizens. 

Mr. GOWDY. Which brings me, Mr. Arulanantham—is that close? 

Mr. ARULANANTHAM. Very close. 

104 

Mr. GOWDY. That is probably as close as I am going to get. So 

I will stop there. 

Let’s assume, for the sake of argument—and there is an argument—whether or not Somalia is a country as opposed to just a collection of gangs. Assume Somalia is a country. Assume a Somali 

commits a crime in South Carolina or California, that that Somali 

is convicted, serves a sentence. What would you purport to do with 

that Somali after the execution of that sentence? 

Mr. ARULANANTHAM. Well, I think as the Supreme Court’s decision in Zadvydas makes clear, if the person cannot be deported, 

which I take it is the premise of your question—I mean, we should 

make whatever efforts we can to deport the person. I too support 

what you have been talking about. The Supreme Court has said, 

for example, that they don’t even have to have a government in 

order to deport them to Somalia. That was the decision of the Supreme Court several years ago in case called Jama. 

But assume that they cannot be deported. The decision makes 

clear that you can release the person on an order of supervision 

which can be quite intensive. They can wear an electronic monitor. 

They can be forced to appear on a very regular—— 

Mr. GOWDY. I hear you, but I have yet to see an electronic bracelet that is going to deter someone who is hell-bent on committing 

another criminal offense. I just think that is—that is wonderful in 

an academic setting. It just doesn’t work in the real world. So 

what, beyond staying in this country—if a country won’t accept 

them back and we don’t want them here, what do you purport? 

What is your version of Mr. Smith’s bill? 

Mr. ARULANANTHAM. Mr. Representative, the Supreme Court 

yesterday affirmed a decision. Justice Kennedy wrote the opinion. 

Mr. GOWDY. I am well aware of it. 

Mr. ARULANANTHAM. And it orders the release of something like 

37,000 people. 

Mr. GOWDY. Despite Congress specifically telling the courts to 

consider public safety as a factor in reaching those decisions, you 

are right. They have released close to 40,000 prisoners in California. I am aware of that. 

Mr. ARULANANTHAM. So view about that is Justice Kennedy really believed that the Constitution constrains what you could do in 

the name of public safety in that context. I would say here you 

have got thousands of citizens—1.6 million citizens and non-citizens incarcerated today in the criminal system as a whole, all the 

different criminal systems. Right? And those people, when they 

commit the same crimes that your hypothetical Somali commits, 

when they are done, we put them on probation or parole or whatever it is, and eventually we release them back into society one 

way or another. 

Mr. GOWDY. They are citizens. Right? I mean, you are not arguing for the same system for non-citizens as citizens, are you? 

Mr. ARULANANTHAM. I am not, Mr. Representative, except to say 

that in the public safety problem, which is your fundamental concern and a concern that I recognize and think is absolutely important in this context—— 

105 

Mr. GOWDY. What is your proposed solution? What is your proposed solution? Mr. Smith has come up with a proposed solution. 

You don’t like it. What is your proposed solution? 

Mr. ARULANANTHAM. My proposed solution would be—— 

Mr. GOWDY. Electronic monitoring? 

Mr. ARULANANTHAM. No. My proposed solution, Mr. Representative, would be to implement detention to the extent that the Constitution permits it. In the Constitution, it is well laid out. The 

Constitution permits the detention of people if they are specially 

dangerous and—— 

Mr. GOWDY. What was the vote in the California case? Do you 

recall? 

Mr. ARULANANTHAM. I believe Justice Kennedy is the fifth vote. 

Mr. GOWDY. It was a 5 to 4 decision. So I am reluctant to assign 

lots of constitutional gravity when this Supreme Court continues to 

splinter on 5 to 4 votes. In South Carolina, we don’t have a speedy 

trial act. Is the Due Process Clause implicated if we hold somebody, detain somebody for 12 months prior to trial? Is 90 days the 

maximum? 

Mr. ARULANANTHAM. I cannot speak to it in the criminal system, 

Mr. Representative. I can say that we are talking about people held 

for years in many cases who have either committed no crime or 

have committed only very old convictions. 

Mr. GOWDY. What if we gave them a bond hearing and applied 

the same bond analysis that we do with United States citizens: a 

danger to the community and flight risk? And they just have a 

bond, but they can’t reach the bond because it is set at half a million dollars. Would that satisfy it? 

Mr. ARULANANTHAM. It is a case-by-case situation about whether 

bond amounts may become unreasonable even under the regular 

Federal system. That is a question that is analyzed under the Bail 

Reform Act. 

I do believe that for prolonged detainees, all the Constitution 

would require would be the same criminal bond system that we 

have in regular criminal cases. If you just implemented that—you 

know, in that system you get in at about 48 hours. In a few days 

you get that hearing. 

Mr. GOWDY. But I am talking post-adjudication. I am talking 

about after the crime has been committed. Lots of States, including 

the Federal system, doesn’t have parole anymore. So there is no apparatus by which to monitor people who have already executed 

their sentence. 

Are you advocating for the same analysis for citizens as non-citizens? 

Mr. ARULANANTHAM. I think we are talking about two slightly 

different things here. But for people whose sentences are over and 

if they were a citizen, they would be released back onto the 

street—— 

Mr. GOWDY. Right, with no conditions. 

Mr. ARULANANTHAM. Right. My point is just even under existing 

law, under Zadvydas, we can release that same person if they are 

a non-citizen with more supervision and more public safety protections than we can if they are a citizen. 

106 

Mr. GOWDY. My question is how do we get them back to their 

country of origin. 

Mr. ARULANANTHAM. And to that, other than telling you what I 

think the constitutional constraints are, my solutions are only what 

Mr. Mead had said, to negotiate with those countries and to take 

whatever diplomatic and foreign policy steps we can take to ask 

those countries to accept their nationals back. 

Mr. GOWDY. Where does public safety factor into your due process analysis? 

Mr. ARULANANTHAM. It is one of the considerations which the Supreme Court says is very important in deciding when you can detain people after a sentencing judge has already decided, right, that 

they should only be sentenced to a certain amount of time. 

But my point is just that that safety consideration is important, 

but it is not like you are more dangerous because you are a noncitizen. That doesn’t make you more of a threat to public safety. 

Right? You have committed the crime you have committed. Now we 

know either you are likely to recidivate or you are not, and there 

are a bunch of factors that go into that. And that doesn’t change 

whether you are one or the other. Of course, we should deport people if they flout our immigration laws. For sure, we should. But if 

you can’t, the Constitution doesn’t allow you to lock the person up 

forever for their whole life just because they are a non-citizen, 

whereas if they were a citizen, you would have to let them go back 

to the street. So in our view it is just what the Constitution demands. 

And you are right, Mr. Representative, that Brown is 5-4, but the 

analysis in Zadvydas rests on a long line of cases. It is not like the 

idea that you can indefinitely detain people after their sentence is 

over. It is like a new idea for five Justices of the Supreme Court. 

I mean, it is a set of cases over time that have established that 

rule. It is a basic, fundamental principle in our constitutional system that after your sentence is done, when the sentencing judge 

has decided, then—— 

Mr. GOWDY. Well, let me say this because my time is up. The 

system we have now is woefully broken. Representative Smith has 

come up with a way to fix it that I think is laudable, and I am always amazed—and I am not talking about you specifically—at the 

folks who aspire to shoot holes in other people’s ideas and don’t 

come to the table with their own. 

And with that—— 

Ms. LOFGREN. Mr. Chairman, may I be recognized for a unanimous consent request? 

Mr. GOWDY. Sure. 

Ms. LOFGREN. I have a series of letters and statements for the 

record prepared for today’s hearing. There are so many that I won’t 

read them all. But nearly 100 immigration and constitutional law 

professors and scholars, as well as the Constitution Project and the 

American Immigration Lawyers Association, religious organizations 

such as the U.S. Conference of Catholic Bishops, Lutheran Immigration Refugee Services, and the Hebrew Immigrant Aid Society, 

civil liberties groups such as the Leadership Conference for Civil 

and Human Rights, and the League of United Latin American Citizens, refugee organizations, human rights groups, and immigration 

107 

advocacy organizations. And I would ask unanimous consent that 

their statements and letters be made a part of the record. 

Mr. GOWDY. Without objection. 

[The information referred to follows:] 


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Mr. GOWDY. The Chair would now recognize gentlelady from 

Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. I thank the Chair. 

And I am very intrigued by the Chairman’s bafflement and desire to find a remedy. And I would say to the Chair that what I 

have gotten from Mr. Arulanantham’s commentary is, without him 


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saying it, that America is different and that we have the responsibility to respond to the needs of Chief Baker. And none of us here 

are asking to eliminate deportations, those who are in the midst of 

deportations. 

But when we look at the good efforts of my friend from Texas, 

sometimes good efforts are not good enough. And frankly, what we 

have is what we call in Texas a lassoing by horseback and with one 

of our profound, talented cowboys and just rounding up everyone 

and anything. I don’t think that is the American way. We are here 

to ensure that America is safe, that our law officers do not have 

to be subjected to reckless, violent actions of individuals that have 

been in detention and possibly in removal proceedings. And I believe there is a way of finding a reasoned balance. 

Mr. Mead, let me ask you. What are you doing? You have got two 

decisions, the Fifth Circuit and the Ninth Circuit. What are you 

doing right now in terms of your detention? Do you have people in 

detention? 

Mr. MEAD. In the Fifth Circuit? 

Ms. JACKSON LEE. Do you have people in detention, yes, in those 

areas and outside those areas? 

Mr. MEAD. Yes, we have people in detention in the Fifth Circuit. 

Ms. JACKSON LEE. And what is the block that you now have with 

the decision that is in place? 

Mr. MEAD. In that particular circuit, the special circumstances 

that would allow us to detain people beyond the 180 days don’t 

apply. 

Ms. JACKSON LEE. So what is your response? 

Mr. MEAD. Well, we up to that point continue to try and get a 

travel document for those people and remove them and at that 

point that we would have to release them, we put whatever controls on them we can, as was discussed, electronic monitoring, regular reporting, and during that time also continue to try and get 

travel documents. 

Ms. JACKSON LEE. So you don’t stop your work of trying to remove these individuals from the country. 

Mr. MEAD. No, ma’am, we do not. 

Ms. JACKSON LEE. Though I am not applauding necessarily the 

decision of the Fifth and Ninth Circuits, but you are also anxiously 

moving quicker in terms of trying to move the document process 

along. 

Mr. MEAD. Well, I don’t know that we move quicker because in 

all cases we move as quickly as we can. Our goal is not to detain 

people. Our goal is to remove them. And so we move as quickly—— 

Ms. JACKSON LEE. Well, let us just say that you are persistent 

and determined. Is that correct? 

Mr. MEAD. Yes, ma’am, we are persistent and determined. 

Ms. JACKSON LEE. You said something in your testimony that 

said that ICE is not in the business of holding detainees for an indefinite time. My assessment of this legislation would cause you to 

hold detainees with lesser offenses, theft, receiving stolen property. 

Is this going to be an effective utilization of your resources? Do you 

have the necessary detention, if you will, infrastructure to be able 

to now expand? Rather than giving you the authority that you 

wanted before, now it is expanding what your jurisdiction is. It is 

176 

now going to all of these lesser offenses that you will be holding 

persons for, not allowing them to have a bond under this legislation. 

Mr. MEAD. Congresswoman, I can’t comment on the legislation, 

but I can tell you that the number of detention beds we have is finite, as appropriated by Congress, and as a result, we do prioritize 

the use of them, beginning with people that pose the greatest 

threat and pose the greatest risk of flight. So that is how we handle them. 

Ms. JACKSON LEE. And that is a common sense approach. 

Let me go to Mr. Arulanantham and help you—not that you need 

helping out, but let me just pointedly say are you, in essence, insensitive to the need to provide detention and the deportation process. You are aware that there is a process in place that is a legitimate process. Is that correct? 

Mr. ARULANANTHAM. Absolutely. 

Ms. JACKSON LEE. Then how undermining is this legislation 

when it comes to both our constitutional premise, what we are 

guided by, even though these individuals are non-citizens, but also 

just the plain sense of detaining people indefinitely, no judicial 

intervention, people with mental illness having no ability for treatment, individuals traveling with their families who are children, no 

seemingly exemptions made for them? How unrealistic and how 

troublesome is this when it relates to the constitutional premise of 

due process? 

Mr. ARULANANTHAM. Thank you, Representative. 

The Due Process Clause says it applies to all persons, and there 

is no question that the people that we are talking about today are 

persons under the Due Process Claus. So there are two ways in 

which the bill really fundamentally undermines those. 

And the first is that it allows, while a person is going through 

the deportation process and may have a very good argument that 

they should not be deported—they may ultimately win their case. 

While that process is going on, this bill makes it, in many cases, 

impossible for them just to get a day in court on do I have to be 

locked up while I am going through my case. And so people get detained for years while their cases are pending, and they don’t ever 

get a bond hearing. And that applies to people who have no criminal convictions at all. 

Ms. JACKSON LEE. Sometimes it is difficult for them to have 

counsel for those bond hearings. Many do not have, and in detention there is not a procedural requirement for them to have a lawyer. 

Mr. ARULANANTHAM. That is right. And 84 percent, according to 

a study from a couple of years ago, do not—of the detained population, do not have a lawyer. 

Ms. JACKSON LEE. And we are certainly not talking about Osama 

bin Laden’s cousin, the level of intensity that we are speaking 

about right now. 

Mr. ARULANANTHAM. No, and some of the people are people I 

talked about earlier. My client was detained 2 and a half years. He 

is a Christian minister. You know, there is a Senegalese information systems—a variety of people who have no criminal history at 

all or only extremely minor crimes. 

177 

And the second way it does is it authorizes the potentially permanent detention. This is the second issue that we have been discussing. And under this bill, it includes a lot of people who have 

been convicted of very ordinary offenses. Again, we are not talking 

about terrorists or people who have committed very, very serious 

crimes. 

I think this goes back to the question, Representative Gowdy, 

you were asking me. Let me see if I can do a little bit better to 

give you an alternative. 

Ms. JACKSON LEE. I will allow you to expand on that. 

Mr. ARULANANTHAM. I appreciate that. 

All of the States have civil commitment systems, and those have 

been upheld—they have not all been upheld but several of them 

have been upheld in the Supreme Court—for the detention of people who are specially dangerous, but with very rigorous procedural 

protections. 

So, for example, you were discussing this Fifth Circuit case, Representative. My understanding of it—I did not represent that person. The ACLU did. My understanding is that after the Government lost that person’s case, he was detained in the civil commitment system in Massachusetts. Now, I haven’t followed up to know 

what happened yesterday, but that is my understanding from—— 

Ms. JACKSON LEE. So there was an alternative. 

Mr. ARULANANTHAM. Right. So all of the people described in the 

bill could be referred to State civil commitment systems. Those systems have been—like I said, I won’t say every single one, but they 

have been upheld by the Supreme Court as a general matter in a 

couple cases out of Kansas. And if they qualify for civil commitment, they can be held under that system. 

But the bill authorizes the indefinite detention of a lot of people 

who are not very dangerous and probably wouldn’t get detained 

under those systems. And that is the other reason why it is unconstitutional. 

Ms. JACKSON LEE. Mr. Chairman, can I just ask indulgence for 

him to answer my question about what the bill would do for individuals who are experiencing mental illness or those families who 

have children under 18 who may be in that process and unaccompanied. There seems to be no provisions or relief if people are in 

those conditions or no required treatment if you are in that condition and you indefinite extension of your detention, and then there 

doesn’t seem to be an exemption for families with children that 

may be in an indefinite detention. 

Mr. ARULANANTHAM. That is correct, Representative. So, for example, Warren Joseph, who is a person I talk about in my written 

testimony. He was a veteran of the Gulf War, a decorated veteran 

of the Gulf War. And he had PTSD. He was convicted of a firearms 

offense. In the original conviction, he wasn’t sentenced to any time. 

But that conviction made him deportable. And he was eligible for 

release, and he ultimately won that release. So he won his immigration case, but it took 3 years for that case to go on. And that 

Gulf War veteran spent 3 years in immigration detention while he 

was fighting his case. 

And the courts have now—there is a growing consensus in the 

Federal courts that that is unlawful. It violates the Due Process 

178 

Clause because if you are going to be detained for that long, you 

should get a bond hearing. But this bill would reverse those. 

Ms. JACKSON LEE. And children as well. 

Mr. ARULANANTHAM. Yes, similarly no special provision for them 

either. 

Ms. JACKSON LEE. I thank you. I think we should studiously, Mr. 

Chairman, look carefully at this legislation. 

I yield back. 

Mr. GOWDY. I thank the gentlelady from Texas. 

And the Chair would recognize the Chairman of the full Committee, the gentleman from Texas, for any concluding comments or 

questions he may have. 

Mr. SMITH. Thank you, Mr. Chairman. I asked my questions earlier. 

But Mr. Arul, I had one more question for you. Are there any 

criminals, perhaps a mass murderer or a serial rapist, whom you 

would support being detained indefinitely or, say, in a series of 6- 

month periods, which is allowed under the bill? 

Mr. ARULANANTHAM. Yes. In the sense, Representative, the Supreme Court in two cases, Kansas v. Hendricks and Kansas v. 

Crane, has upheld the constitutionality of the prolonged detention, 

under certain rigorous procedural protections, of people who are 

specially dangerous. You have to look at a particular case to see 

if it fit those rules, but that is constitutional. The Supreme Court 

has upheld it and we would have no—— 

Mr. SMITH. Let’s just take those examples. So you would support 

detaining a mass murderer or a serial rapist indefinitely? 

Mr. ARULANANTHAM. They would have to meet the criteria set 

forth in those cases. But if a person was specially dangerous and 

met the criteria in those cases—— 

Mr. SMITH. So at least there are some instances where you would 

support indefinite detention. You don’t have an absolute stand that 

no, never. 

Mr. ARULANANTHAM. Yes. The Supreme Court upheld—— 

Mr. SMITH. I think the answer is yes. Okay, thank you. 

Ms. LOFGREN. Mr. Chairman, since we are doing afterthought 

questions—— 

Mr. GOWDY. Yes, ma’am. The Chair would recognize the 

gentlelady from California for any concluding remarks she may 

have. 

Ms. LOFGREN. As I look at the list of countries, I couldn’t help 

but notice that more than half of the people who have not been deported are from Cuba. People can have different viewpoints about 

that, but I do notice that we don’t have diplomatic relations with 

Cuba and that there is a strong contingent of Congress that dramatically opposes opening the door to diplomatic relations with 

Cuba. So I think that is a major impediment to the deportation 

problem that we are discussing today. I just thought it was important to note that. 

And I know that the Chairwoman of the Foreign Affairs Committee—I don’t know what she thinks about this bill, but I do know 

what she thinks about Cuba, and she is not in favor of having diplomatic relations with Cuba. So I think we just need to state that 

that is a big part of this whole issue. 

179 

I just wanted to finally comment that we have taken some steps, 

it sounds like, that were, frankly, far overdue in terms of forcing 

these countries to act. So I think it is worth noting that this new 

memorandum of understanding is already having—the Cuba issue 

is a side one, but it is already having an impact and I expect that 

it will continue to have an impact in some cases. 

And I would remiss if I did not mention the case of Vietnam because we have a communist government in Vietnam as well. I have 

a large number of Vietnamese American constituents who do not 

support—I mean, if it is a person who is a criminal. That is one 

thing. But if someone is here on an immigration violation, they do 

not support sending somebody back to the communists, and they 

are as serious about that as Ileana is about Cuba. 

I remember we had a witness here of a young woman who tragically lost her life in an auto accident whose family escaped from 

communist China in a boat. They were picked up by a German 

liner. And this young girl was born in Germany, and then her parents came to the U.S. and overstayed their visa. And we tried to 

get Germany to take her, but they wouldn’t. 

Under this bill, she would be in jail for her life, and that is unreasonable. It doesn’t solve the issue, Chief, that you have raised. 

It is a legitimate one and needs an answer, but this goes too far. 

I am hopeful that we can work through it and fix it and get something that we are all proud of. 

And I thank the gentleman for yielding. 

Mr. GOWDY. Yes, ma’am. 

In conclusion, I couldn’t help that note that Iraq was on this list. 

When you consider the amount of money and other natural resources, including the blood and limbs of our boys and girls that 

have been spent in that country, that needs to be fixed yesterday. 

And in conclusion, I would note my colleague, the gentlelady 

from Texas, said America is different, and she is correct in many 

ways, and most of them are laudatory. But we have one of the 

highest crime rates in the world. We have an unacceptably high recidivism rate. And talismanically, 5 to 4 Supreme Court decisions 

all of a sudden become bright-line constitutional rules the minute 

they are published, and most of us find that frustrating. 

But on a happier note, we want to thank our witnesses for their 

testimony today. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which we will forward and ask the witnesses to respond to as 

promptly as they can so their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that and on behalf of all of us, again, we apologize for the 

intrusion into your time, and thank you for helping shed light on 

this significant issue. 

With that, we are adjourned. 

[Whereupon, at 1:08 p.m., the Subcommittee was adjourned.] 

181 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Thomas M. Susman, Director, Governmental Affairs Office, 

the American Bar Association 


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Letter from Douglas E. Baker, Chief of Police, Fort Myers Police Department, 

Fort Myers, FL 


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FY2009-FY2011 YTD Zadvydas Releases by Citizenship, Country, and Criminality 


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Æ 


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