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77–437 PDF 2002

S. Hrg. 107–261

REVIEW OF INS POLICY ON RELEASING ILLEGAL

ALIENS PENDING DEPORTATION

HEARING

BEFORE THE

PERMANENT SUBCOMMITTEE ON

INVESTIGATIONS

OF THE

COMMITTEE ON

GOVERNMENTAL AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

NOVEMBER 13, 2001

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

FRED THOMPSON, Tennessee

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

PETE V. DOMENICI, New Mexico

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

JIM BUNNING, Kentucky

JOYCE A. RECHTSCHAFFEN, Staff Director and Counsel

HANNAH S. SISTARE, Minority Staff Director and Counsel

DARLA D. CASSELL, Chief Clerk

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

CARL LEVIN, Michigan, Chairman

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

SUSAN M. COLLINS, Maine

TED STEVENS, Alaska

GEORGE V. VOINOVICH, Ohio

PETE V. DOMENICI, New Mexico

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

JIM BUNNING, Kentucky

LINDA J. GUSTITUS, Chief Counsel and Staff Director

KIM CORTHELL, Republican Staff Director

MARY D. ROBERTSON, Chief Clerk

(III)

C O N T E N T S

Opening statements: Page

Senator Levin .................................................................................................... 1

Senator Collins ................................................................................................. 3

Senator Carper ................................................................................................. 21

WITNESSES

TUESDAY, NOVEMBER 13, 2001

Michael A. Pearson, Executive Associate Commissioner for Field Operations,

U.S. Immigration and Naturalization Service, accompanied by Gustavo

DeLaVina, Chief, U.S. Border Patrol ................................................................. 6

Mark P. Hall, President, Local 2499, National Border Patrol Council, and

Senior Border Patrol Agent, U.S. Border Patrol, Detroit, Michigan ............... 29

Keith M. Olson, President, Local 2913, National Border Patrol Council, and

Senior Border Patrol Agent, U.S. Border Patrol, Bellingham, Washington .... 32

Eugene R. Davis, Retired Deputy Chief Patrol Agent, Blaine Sector, U.S.

Border Patrol, Blaine, Washington ..................................................................... 35

ALPHABETICAL LIST OF WITNESSES

Davis, Eugene R.:

Testimony .......................................................................................................... 35

Prepared statement .......................................................................................... 69

Hall, Mark P.:

Testimony .......................................................................................................... 29

Prepared statement .......................................................................................... 61

Olson, Keith M.:

Testimony .......................................................................................................... 32

Prepared statement .......................................................................................... 65

Pearson, Michael A.:

Testimony .......................................................................................................... 6

Prepared statement .......................................................................................... 49

EXHIBITS

1. Map of various sectors of the U.S. Border Patrol .......................................... 73

2. INS Notice to Appear form showing failure to provide address .................... 74

3. INS Change of Address Form .......................................................................... 75

4. INS Form I–213, Record of Deportable/Excludable Alien ............................. 76

5. List of systems for background checks ............................................................ 77

6. FY 2001 Arrests by Border Patrol in Detroit Sector ..................................... 79

7. Statement for the Record of the U.S. General Accounting Office ................. 80

8. Letter request from Joe Bryan, Legislative Assistant to Senator Carl

Levin, dated October 19, 2001, to the U.S. Border Patrol, and data provided in response to request for U.S. Border Patrol arrest statistics in

the Detroit Sector ............................................................................................. 93

9. Letter request from Permanent Subcommittee on Investigation’s Chairman Carl Levin, dated October 23, 2001, to U.S. Immigration and Naturalization Service Commissioner James Ziglar, and information provided

in response to request regarding activities of the U.S. Border Patrol

at the No4rthern and Southern Borders ........................................................ 122

Page

IV

10. Letter from the Immigration and Naturalization Service, dated December 20, 2001, to the Permanent Subcommittee on Investigations, regarding issues raised at the Subcommittee’s November 13, 2001 hearing ....... 131

11. Letters between Permanent Subcommittee on Invesitgations and the

Executive Office for Immigration Review regarding statistics on the

number of aliens arrested by the Border Patrol while in the process

of illegally entering the United States .......................................................... 136

12. Chart entitled U.S. Border Patrol Suspect Processing ................................ 139

13. Memorandum dated December 20, 2001, from Michael Pearson, INS

Executive Associate Commissioner to Regional Directors requiring

‘‘Criminal Indices Checks’’ for all aliens placed in INS removal proceedings ........................................................................................................... 140

(1)

REVIEW OF INS POLICY ON RELEASING

ILLEGAL ALIENS PENDING DEPORTATION

TUESDAY, NOVEMBER 13, 2001

U.S. SENATE, PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, OF THE COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC.

The Subcommittee met, pursuant to notice, at 9:30 a.m., in room

SD–342, Dirksen Senate Office Building, Hon. Carl Levin, Chairman of the Subcommittee, presiding.

Present: Senators Levin, Collins, and Carper.

Staff Present: Linda Gustitus, Chief Counsel and Staff Director;

Mary D. Robertson, Chief Clerk; Ross Kirschner, Staff Assistant;

Joe Bryan and Tara Andringa (Senator Levin); Kim Corthell, Republican Staff Director; and Eileen Fisher, Investigator to the Minority.

OPENING STATEMENT OF SENATOR LEVIN

Senator LEVIN. Good morning, everybody. Today, the Permanent

Subcommittee on Investigations will hear from current and past

employees of the U.S. Border Patrol who have come forward to express their concern and dismay at the Immigration and Naturalization Service’s practices, the INS practices, involving the release of

persons arrested for trying to gain illegal entry into the United

States. While the problems raised by the Border Patrol agents

would be serious in normal circumstances, they carry particular

weight since the attacks of September 11.

The U.S. Border Patrol is, according to its own description, the

mobile, uniformed law-enforcement arm of the INS. It was officially

established in 1924 and was given the responsibility of combating

alien smuggling and illegal entries other than at ports of entry.

While the Border Patrol itself has changed significantly over the

years, its principal mission has remained the same. The area we

will be focusing on in this hearing involves the illegal entry of persons into the United States, outside of normal ports of entry.

Ports of entry are the only places where people may legally enter

the United States. They are locations such as airports, bridges and

highways, where INS officers and Customs agents review persons,

papers and luggage, to decide whether to allow someone into the

United States. Today’s hearing looks at illegal entries made at

places other than these official ports.

While the statistics that we use to illustrate the problem may include people who have been in the country illegally for some time,

what we are focusing on today are people who are arrested while

2

1See Exhibit No. 1 which appears in the Appendix on page 73.

1See Exhibit No. 6 which appears in the Appendix on page 79.

trying to slip across our Borders without subjecting themselves to

inspection at a port of entry as required by law. Our witnesses

today are from two sectors of the Border Patrol, and as you can see

from this map, the Border Patrol is divided into 21 sectors, and the

representatives that we will have testifying today are from the Detroit Sector, which covers four States, Michigan, Ohio, Indiana and

Illinois, and the Blaine Sector, which covers Alaska, Oregon and

the Western half of the State of Washington.1

When persons are arrested by the Border Patrol, the large majority voluntarily returns to their country of origin, usually Mexico or

Canada. The others, perhaps as many as one-third of those arrested on the Northern Border, but just a small fraction arrested

on the Southern Border, are scheduled to appear at a removal

hearing. The Border Patrol decides whether those persons should

be detained, released on bond or, as is most often the case, released

on his or her own recognizance while awaiting the hearing. The removal hearing can take several months to occur. Detention decisions are not made by the Border Patrol alone. If the Border Patrol

decides to detain a person or set a bond to help assure that a person shows up at a hearing, the INS deportation office can revise

that decision and order the person released on a lower bond or on

his or her own recognizance.

To be released on your own recognizance means that you are released on your promise that you will appear at the scheduled hearing. There is no bond. For a number of reasons that we will be discussing at this hearing, the Border Patrol and the INS release on

their recognizance a significant number of people who are arrested

for illegal entry, even though it is clear that most will not show up

at their removal hearing. That means that most people who get

caught and arrested for illegal entry, who do not voluntarily return

to their country, are allowed to move at will in this country with

no constraints, other than a written instruction to appear at a

hearing that is likely to result in their removal from this country,

and that is absurd.

Look at the statistics that we were able to obtain from the Detroit Sector.1 In fiscal year 2001, the Detroit Sector of the Border

Patrol arrested 2,106 people. A significant percentage of those were

arrested while actually attempting to enter the country illegally.

Now, we do not have that exact figure, but a significant percentage

of the 2,106 were actually arrested in the process of entering the

country or attempting to enter the country illegally. Of those 2,106,

slightly less than two-thirds were voluntarily returned to their

country of origin. That is 773 were issued notices to appear at a

removal hearing. Pending their removal hearing and based on statistics provided by Border Patrol agents, we estimate that 85 percent of the 773 were released on their own recognizance, or about

650 people. The rest, about 116 people, were detained or released

on bond. So that means, again, that about 650—or 657 on that

chart—were released on their own recognizance.

Now, how many of those people who were released on their own

recognizance that they would appear at a hearing—how many of

3

those people actually showed up for the hearing? The INS does not

know. One former INS district director and Border Patrol chief told

us that he thought that the percentage of persons arrested, again

outside a port of entry, and released without bond, who do not

show up for their hearing, was 90 percent. Our conclusion is that

the vast majority of people arrested by the Border Patrol while attempting to enter the country illegally in the Detroit Sector, who

do not voluntarily return to their country, are released on their

own recognizance and do not show up for their removal hearings.

And, to add insult to that injury, the INS has told us that if a

person does not appear at their hearing, little or no effort is made

to find them. I view this to be a dysfunctional, absurd system. The

INS must know, even without keeping statistics, that once a person

is released after being arrested for illegal entry, they stand a very

good chance of avoiding removal at all. So why then does the INS

continue to release so many on their own recognizance? That is

what we are going to explore this morning. We will hear this morning not only from Border Patrol officers on the front lines, we will

also hear from the first panel of witnesses who represent INS and

Border Patrol management.

Senator Collins.

OPENING STATEMENT OF SENATOR COLLINS

Senator COLLINS. Thank you very much, Mr. Chairman, and

thank you for calling this important hearing to review the Immigration and Naturalization Service’s policy of releasing illegal

aliens while they await their deportation hearings. We will hear

that many of the individuals released never appear for their hearings, choosing instead to vanish into American society, and adding

to the estimated 8 million illegal aliens currently in the United

States.

Many of the 8 million illegal aliens in America entered our country legally, but overstayed their visas, others slipped undetected

across our Borders. A significant number of others were apprehended by the Border Patrol, but released pending the scheduling

of a hearing before an immigration judge. As Senator Levin indicated, according to one recently retired INS official, as many as 90

percent, or 22,000 of this group, do not show up for their hearings

each year. The obvious question arises: Is the INS policy of releasing individuals before their deportation hearings take place in the

best interest of our country’s national security?

Last year, the Border Patrol arrested 1.2 million people who entered the United States without presenting themselves for inspection at a port of entry, as required by law. The vast majority of

these individuals returned voluntarily to their country of origin

after the Border Patrol collected information about them, including

a fingerprint, that is put in the Immigration Service’s automated

fingerprint system, called IDENT. Thousands of others, perhaps

20,000 to 30,000 of those apprehended, are scheduled for a hearing

before an immigration judge. The vast majority of those released,

as we have indicated, failed to show up. Although the INS may

send out a notice to these no-shows, INS agents are not routinely

sent out to locate the illegal aliens who fail to appear.

4

This morning, we will hear disturbing testimony describing how

INS agents would have difficulty locating these no-shows, even if

they were going out to look for them, in part because the contact

information the illegal aliens provide is not verified consistently.

We will also hear how criminal and background checks are not routinely conducted prior to releasing the illegal alien, a policy that

could result in felons or other dangerous individuals being released

into American society.

The lack of detention space is another factor that may influence

how many illegal aliens are detained. The policy of releasing illegal

aliens pending deportation hearings is not limited to aliens who are

apprehended by the Border Patrol when they try to enter the

United States outside a port of entry. In September 2000, the General Accounting Office reported that it is the policy of the INS to

release aliens seeking asylum, whom the agency has determined do

not pose a flight risk.

In 1999, some INS district offices released nearly 80 percent of

the asylum seekers pending their asylum hearings, yet as many as

one-third of these individuals failed to appear for their asylum

hearings. In fact, many of them never even bothered to file an application for asylum. A more recent report issued by the Department of Justice Office of Inspector General notes that more than

75 million individuals are inspected each year at U.S. airports for

potential admission to the United States, some of whom are referred for secondary inspection. The report estimates that approximately 10,000 of the individuals subjected to a secondary inspection are ordered to gather additional documentation and report to

an INS district office to complete the inspection.

Included among those whose inspections were deferred were individuals about whom lookouts had been placed on databases, as well

as people with criminal records. The report indicates that at least

11 percent of those paroled failed to complete the inspection, and

that 50 percent of these no-shows had criminal records or were on

the lookout list. The Inspector General’s report notes that the INS

did not consistently track these inspections to completion and conducted little or no follow-up on the no-shows. Now, more than ever,

we must ensure that we know who is being permitted to enter the

United States.

I hope that this hearing will draw attention to the larger problem of securing our Nation’s Borders, particularly our porous

Northern Border, as it appears to be the entryway of choice for a

number of terrorists, and this is an issue that I look forward to

working with the Chairman on and have asked him to pursue. For

example, in December 1999, Ahmed Ressam drove a car loaded

with 130 pounds of explosives and timing devices from Canada to

the State of Washington, with the intention of bombing the Los Angeles International Airport. Thankfully, he was apprehended by an

alert U.S. Customs Agent as he attempted to enter through a port

of entry.

Convicted in April on terrorism charges, Ressam awaits sentencing next year. There are other examples, as well. More recently, a reputed Bin Laden operative, wanted in connection with

the attacks on the World Trade Center and the Pentagon, also

chose to enter the United States from Canada. The Southern BorVerDate 11-MAY-2000 11:01 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 77437.TXT SAFFAIRS PsN: SAFFAIRS
5

der has long been a focus of INS resources, while the Northern

Border consistently has been understaffed and underfunded. Only

about 340 Border Patrol agents and about 500 INS inspectors

watch a Border nearly 4,000 miles long in the continental United

States alone, and staff 113 ports of entry. Prior to September 11,

a number of these ports were not staffed and guarded 24 hours a

day, and agents in Maine have told me that they feel extremely

overworked and stressed in trying to fully staff these ports, 24

hours a day.

The comprehensive new anti-terrorism law, signed recently by

the President, contains provisions to strengthen immigration enforcement and otherwise aid in the fight to detect and thwart terrorist activity. One important provision would authorize a tripling

of the number of Border Patrol personnel, Customs service personnel and INS inspectors along the Northern Border. It also authorizes $100 million to improve INS and Customs Service technology, and additional equipment for monitoring the Northern Border. Swift implementation of these measures is critical to strengthening our homeland security.

I look forward to hearing the testimony from all our witnesses

today, and again I commend the Chairman for chairing and holding

this important hearing. As the President has said, we live in a very

different world from the one we lived in on September 10. We need

to adapt to that new reality by improving the methods by which

we protect our Borders, our liberty and our lives.

Thank you, Mr. Chairman.

Senator LEVIN. Thank you, Senator Collins, and thank you for

your good work in this area. Before I introduce our first panel, I

want to just make a statement about our second panel. The second

panel consists of two current employees of the U.S. Border Patrol,

both of whom are senior agents and presidents of their local union,

and one former employee who served at the time of retirement as

a Deputy Chief Patrol Agent. The current employees are here today

under subpoena, though both agents were willing to come on their

own as well. I issued these subpoenas as Chairman of this Subcommittee in response to concerns against these agents of possible

retaliation by the INS. Mark Hall has, within the past 2 months,

been issued two proposals of punishment for speaking to the media

without permission. The first proposal is for a 90-day suspension

without pay; the second is for a 1-year demotion following the 90-

day suspension.

I have fought, Senator Collins has fought, this Subcommittee and

this Full Committee have fought for decades to protect the rights

of whistleblowers in our Federal Government. I am very disturbed

by what I have heard about this matter to date. I have asked the

INS to provide this Subcommittee with all documents relating to

Mark Hall’s personnel actions over the last 2 months, and the Subcommittee staff has been directed to review them. We received

some of the requested documents this morning and have been told

that the rest will be forthcoming, and we expect nothing less. Of

course, if there is any delay or resistance to turning over the documents, we will issue a subpoena for them.

It is not easy for career employees dedicated to their jobs and

their agencies to come forward and to tell the American people

6

1The prepared statement of Mr. Pearson appears in the Appendix on page 49.

about serious problems in their programs. It is hard enough to

swim against the tide without being punished for it financially and

professionally. We will be reviewing these recent actions very closely. We will not tolerate any form or degree of retaliation for appropriately blowing the whistle on mismanagement.

Now, I am not going to take more of today’s hearing to get the

details of this personnel action, because the issue that we have before us is so important. But I will keep the Subcommittee involved

and informed in overseeing developments in these personnel matters until I am satisfied that these employees are treated fairly and

that these agents have not been subject to any inappropriate or retaliatory action by their employers.

Now I would like to welcome our first panel of witnesses this

morning. We are pleased to have Michael Pearson, Executive Associate Commissioner of Field Operations of the U.S. Immigration

and Naturalization Service, and he is accompanied by the Chief of

the U.S. Border Patrol, Gustavo DeLaVina. Am I pronouncing your

name correctly?

Mr. DELAVINA. That is correct.

Senator LEVIN. Gentlemen, we thank you for being here. We look

forward to your testimony. Pursuant to Rule 6, all witnesses who

testify before this Subcommittee are required to be sworn, and at

this time, then, I would ask the witnesses to please stand and raise

your right hand. Do you swear that the testimony that you will

give before this Subcommittee will be the truth, the whole truth,

and nothing but the truth, so help you, God?

Mr. PEARSON. I do.

Mr. DELAVINA. I do.

Senator LEVIN. We will be using a timing system today. Approximately 1 minute before the red light comes on, you will see the

light change from green to yellow, which will then give you an opportunity to conclude your remarks. Your written testimony will be

printed in the record in its entirety, but we would ask that you attempt to limit your oral testimony to 10 minutes. Again, we thank

you both, and, Mr. Pearson, you may proceed.

TESTIMONY OF MICHAEL A. PEARSON,1 EXECUTIVE ASSOCIATE COMMISSIONER FOR FIELD OPERATIONS, U.S. IMMIGRATION AND NATURALIZATION SERVICE; ACCOMPANIED

BY GUSTAVO DELAVINA, CHIEF, U.S. BORDER PATROL

Mr. PEARSON. Mr. Chairman, Senator Collins, I am pleased to

have the opportunity to talk to you today about the Immigration

and Naturalization Service’s role in processing aliens arrested for

illegal entry into the United States between ports of entry. I am

also pleased to be accompanied today by Gus DeLaVina, Chief of

the U.S. Border Patrol. The INS is charged with both facilitating

legal immigration and enforcing the Nation’s laws to prevent illegal

immigration. The horrific events of September 11 have underscored

the far-reaching implications of this mission and the challenges the

agency faces in carrying it out.

Nowhere are the challenges greater than along our land borders.

Our border management strategy aims to facilitate the flow of legal

7

immigration while preventing the illegal entry of people and contraband. Responsibility for carrying out this strategy is shared by

the Border Patrol and the Inspections program. Immigration Inspectors are assigned to the ports of entry and are charged with facilitating lawful entry and preventing unlawful entry. Border Patrol agents are charged primarily with detecting and preventing

the unlawful entry across our land borders between ports of entry.

The Border Patrol is responsible for patrolling 8,000 miles of border, which includes 2,000 miles of the Southwest Border, 4,000

miles of the Northern Border and 2,000 miles of coastal area. In

1994, as threat and activity levels grew along the Southwest Border, the Border Patrol implemented a four-phase strategy to deter,

detect and apprehend illegal entrants, smugglers and contraband.

This strategy involves forward deployment of personnel, equipment

and technology along the Southwest Border in phases one through

three, and then along the Northern Border, Pacific and Gulf Coasts

in phase four.

The strategy is currently in phase two, concentrating resources

primarily in the area of highest illegal activity, the Southwest Border. We are experiencing a decline in apprehensions along the

Southwest Border. Apprehensions for fiscal year 2001 show a 25-

percent decline when compared to the same period the previous

year. This decline is due in part to the success of our Border Enforcement Strategy. Measures of success along the Southwest Border over the last year include the arrest of 1.2 million aliens, almost 11,000 of whom were identified as criminal aliens, the seizure

of 1.1 million pounds of marijuana, and the seizure of over 16,000

pounds of cocaine.

Along the Northern Border, in fiscal year 2000, the Border Patrol

arrested 12,108 undocumented aliens and seized over 4,900 pounds

of marijuana—57 percent of those arrested along the Northern Border initially entered through the Southwest Border. In fiscal year

2001, 12,338 undocumented aliens were arrested along the Northern Border; 60 percent of those were Mexican nationals and 20 percent were Canadian nationals. Most of those were voluntarily returned to their country of origin—61 percent of the Northern Border apprehensions enter initially through the Southwest Border.

Also in fiscal year 2001, 13,000 aliens were arrested along the

coastal areas.

The majority of illegal alien crossings and narcotic trafficking

continues to occur along the Southwest Border. However, we know

that there is a threat along the Northern Border and coastal areas,

as well, and continue to reevaluate our enforcement strategies. In

the last 3 years, we have increased the number of Border Patrol

agents along our Northern and Coastal Sectors by 25 percent. Border Patrol agents assigned to the Northern Border are experienced.

We have not assigned the newly-hired trainees to the Northern

Border. Additionally, we plan on increasing the number of Border

Patrol agents in our Northern Border this fiscal year, consistent

with funding for fiscal year 2002 and the supplemental.

Now I would like to discuss the process by which Border Patrol

agents arrest aliens who enter the United States illegally. Upon arresting an alien, the alien is charged under either Section 212 or

Section 237 of the Immigration and Nationality Act. Aliens who

8

have entered the United States without inspection and arriving

aliens are charged under Section 212, which describes the grounds

for inadmissibility, while others may be subject to Section 237,

which describes the grounds for deportability. The alien is either

placed in removal proceedings or allowed to voluntarily return to

his or her own country.

Border Patrol agents use the ENFORCE and IDENT computer

systems for processing aliens. ENFORCE is a case management

tracking system, and IDENT is a biometric, recidivist and lookout

database. ENFORCE and IDENT are INS-wide programs that

standardize the collection of data and generate INS forms used in

the administrative or criminal processing of aliens for immigrationrelated violations. Within the Border Patrol, IDENT is deployed to

all sectors. With the exception of two sectors, it is integrated with

the ENFORCE system. ENFORCE will be deployed to Houlton,

Maine, and Swanton, Vermont sectors this fiscal year.

Prior to determining the disposition of the alien, the alien’s name

and other identifying information are checked through ENFORCE

and IDENT, in addition to various systems which may include, but

are not limited to, the Central Index System, the National Crime

Information Center and the Deportable Alien Control System.

Based on the results of the criminal and administrative record

checks I just described, the Border Patrol agent will determine the

most effective and appropriate course of action. A supervisory Border Patrol agent then approves this determination.

Generally there are three possible courses of action: Voluntary

departure; voluntary return; and issuing a warrant of arrest or notice to appear. Once the Border Patrol decides to proceed with the

administrative or criminal processing of an alien, the detention

process begins. There are three reasons INS detains an alien: Risk

of flight; risk of danger to the community; and requirements of law,

such as mandatory detention of certain aliens.

Once charged, those aliens detained by the INS are either in proceedings before an immigration judge to determine whether or not

they are eligible to remain in the United States, or have final orders and are awaiting removal from the United States. If there is

no significant risk of flight or danger to the community, an alien

can also be paroled into the community, released on bond, or released on his or her own recognizance. Availability of detention

space plays an important role in deciding whether or not to detain

the alien.

The most common outcome of the removal proceeding is a final

order of removal. In such instances, the immigration judge determines that an individual is ineligible for legal admission into the

United States and must face removal. During the removal hearing

process, an alien may be granted relief and/or asylum, may be permitted to withdraw his or her application for admission, or the case

may be terminated outright if it is determined that the removal

charge is not sustainable or evidence comes to light that the person

is lawfully present. An alien who is then ordered removed may pursue an appeal of the immigration judge’s decision.

The time it takes to proceed through the appellate process can

be significant, and often places a burden on INS to provide longterm detention. Another avenue to effect removal is to reinstate a

9

prior final order of removal. When an alien previously removed

from the United States reenters illegally, Section 241(A)(5) provides for the reinstatement of the removal order.

As you can see, the INS has established standardized procedures

for processing persons arrested for illegal entry into the United

States. We believe that these procedures allow us to remove these

individuals as rapidly as possible within available resources, while

meeting our statutory requirements and protecting the legal rights

of those arrested. We are willing to work with Members of Congress on any proposal you may have for improving these procedures. This concludes my formal statement. I would like to thank

the Subcommittee for the opportunity to appear. I look forward to

your questions.

Senator LEVIN. Mr. DeLaVina.

Mr. DELAVINA. I have no oral statement, sir.

Senator LEVIN. Thank you. Reading the testimony of the senior

agents and the former deputy Border Patrol chief, who will be testifying after you, Mr. Pearson, there is a very high degree of concern about INS practices with regard to illegal aliens who are arrested coming across the border outside of ports of entry. Now, they

will testify that other than Canadians and Mexicans who are almost always returned to their own country, most of the persons

who are arrested are released into this country on their own recognizance. Thousands never return for their hearing, and no one attempts to seek out and arrest people who fail to show up for their

hearing.

And that is why one of the agents will testify that, as an example, when he recently caught a number of illegal aliens trying to

walk through a railroad tunnel between Windsor and Detroit, when

he shined his flashlight on them, they ‘‘simply continued to the exit

and surrendered to the waiting agents,’’ because they knew that a

person stands an excellent chance of staying in the United States

when he or she crosses the border illegally, outside of a port of

entry. I would like to go through some of the data with you now.

You have said in your testimony that about 12,300 persons were

arrested—this is on page three, and you also gave it in your oral

statement—that about 12,300 persons were arrested for illegal

entry on the Northern Border in 2001. Now, most of these, according to INS data, about 8,000 or two-thirds of those arrested, returned voluntarily. What I am interested in is talking about the

4,400 who did not return voluntarily. These are the people arrested

for illegal entry just on the Northern Border alone—about 4,400 in

2001. So I want to ask you questions about that group of people,

that 4,400 people.

They were given a notice to appear at a removal hearing. That

hearing takes months, frequently, before it takes place, and the

INS has to make a decision about these people pending that removal hearing, whether to detain them, whether to release them

on bond or whether to release them on their own recognizance. Do

you keep statistics about those 4,400 people that you told us about,

as to how many were detained pending their hearing, how many

were released on bond, and how many were released on their own

recognizance?

10

Mr. PEARSON. Senator, I do not have statistics on those 4,400. I

do, however, have the statistics on the Detroit Sector.

Senator LEVIN. All right. Well, I will get to the Detroit Sector in

just one moment, but we have asked for those statistics now, and

are you going to supply those? Do you keep them?

Mr. PEARSON. The people who do our stats for us, who look at

the data in the computers and analyze them and provide us reports, are working on your request right now, but I do not have

that with me.

Senator LEVIN. But that is not something that you publish in

your annual reports?

Mr. PEARSON. I do not believe so.

Senator LEVIN. Now, of those released on their own recognizance,

just based on a promise to show up, about how many actually

showed up for a hearing?

Mr. PEARSON. According to the graphs provided by the Executive

Office for Immigration Review, that is the court system that handles these, about 80 percent show up. They show, in 2001, 20–21

percent did not show up.

Senator LEVIN. Are you including those folks who are given notices to appear, for instance, who do not live up to the conditions

of their visa?

Mr. PEARSON. I am talking about what comes directly off of their

charts on all who appear in the EOIR system.

Senator LEVIN. Which includes all the notices to appear; is that

correct?

Mr. PEARSON. Yes, Senator.

Senator LEVIN. I’m just talking about the people who are arrested by the Border Patrol.

Mr. PEARSON. I do not have that data.

Senator LEVIN. Do you keep that data?

Mr. PEARSON. I do not know. We have asked our statistics people

to see what they could cull out and provide that.

Senator LEVIN. You do not provide that, though, in your annual

report, do you?

Mr. PEARSON. Not that I recall.

Senator LEVIN. So that you do not know and you do not keep

track of, yet, the people who are arrested by the Border Patrol, who

are released on their own recognizance, who do not show up for

their hearings. You do not have that today, and as far as you know,

you do not have that in your files; is that correct?

Mr. PEARSON. Senator, I do not have the answer to that question.

I do not have the data today.

Senator LEVIN. All right. I find that disturbing, to put it mildly,

that we release thousands of people on their own recognizance who

have been arrested by the Border Patrol, perhaps half arrested in

the process of actually seeking to enter this country illegally. We

do not know how many of those do not show up for a hearing. Now,

we are going to hear testimony of agents that will indicate that a

large percentage of the people who are arrested, released by the

Border Patrol, released on their own recognizance, do not show up.

We will come up with that statistic on our own, but we believe

from the agents in the field that 85 percent of the people, again,

arrested by the Border Patrol, which means not at a normal port

11

1See Exhibit No. 6 which appears in the Appendix on page 79.

of entry, who are released on their own recognizance, do not show

up for their hearing. So we are going to leave that figure out there,

because you do not have a better one.

Now, let’s go through the Detroit figure together.1 Do you have

the actual figures for the Detroit Sector? I would rather have your

actual figures than our estimates. The two top numbers there are

your figures, 2,106 arrested by the Border Patrol and 773 issued

notice to appear. So we just took the difference, which is 1,333,

which we then estimated were voluntary returns. We got that number from taking your two numbers, 2,106 arrested by the Border

Patrol, 773 issued notices to appear, and took the difference as voluntary returns.

Then we looked at the 773 of those people which were issued notices to appear, and the estimate that we have, based on the testimony of the agents, is that about 116 of those, that is the 85 percent figure, were released. That is 657, and the 116 is the difference, which would be detained or released on bond. Those figures we are happy to have corrected by your actual figures, if you

have them. The figure that we do not have yet, but we think it is

in the area of 85 or 90 percent, again, are the percentage of those

who are released on their own recognizance who fail to show for a

hearing. You do not have that figure, you have already told us, but

maybe you can give us then the actual figures above that. Do you

want to start with that?

Mr. PEARSON. Thank you, Senator, I would. I spoke with the

Chief Patrol Agent of the Detroit Sector and got these numbers.

Your top number is correct, 2,106, 65 percent were voluntarily returned, that is about 1,365, pretty close to what you have there.

Twenty percent of the number were either detained or were on a

very high bond. That is approximately 420. Fifteen percent were either released on their own recognizance or a low enough bond that

they could make the bond easily. That is approximately 315 people.

Senator LEVIN. And the rest?

Mr. PEARSON. That accounts for 100 percent of the people.

Senator LEVIN. It does. OK. Give me the two numbers that account then for the 773.

Mr. PEARSON. Notices to appear, 35 percent, and that would be

pretty close.

Senator LEVIN. Seven hundred and seventy three were given notices to appear, OK.

Mr. PEARSON. Pretty close. My number above that is 1,365, so

whatever the mathematical difference is.

Senator LEVIN. So you have about 740, roughly.

Mr. PEARSON. Roughly.

Senator LEVIN. Were given notices to appear. Now, give us the

two numbers that make that up.

Mr. PEARSON. Sure, 20 percent of them were either detained or

were on a high bond. That is approximately 420 people. The remaining 15 percent were on either their own recognizance or a low

bond, one they could make; that is 315 people.

Senator LEVIN. Three hundred?

Mr. PEARSON. Fifteen percent, 315.

12

Senator LEVIN. So you have got a little under half then, under

your figures, who were released on their own recognizance.

Mr. PEARSON. Yes, sir.

Senator LEVIN. A little under half of the people who were issued

notices to appear, which is 740. So let’s talk now about those 315

people. How many of those did not show up for a hearing?

Mr. PEARSON. I do not have the answer to that.

Senator LEVIN. You do not keep that record?

Mr. PEARSON. I do not have the answer to that.

Senator LEVIN. Do they keep the record in Detroit?

Mr. PEARSON. The Detroit Chief was not able to provide that to

me.

Senator LEVIN. Don’t you find that disturbing, that we release a

significant number of people on their own recognizance, and your

number is still a very significant number of people, and that we do

not even keep records of those that do not show up? We do not

know. Doesn’t that trouble you?

Mr. PEARSON. Senator, I do not know that we do not have the

information. I was not able to get that. I had to explain that. I do

not have the answer here today, and I do find that troubling.

Senator LEVIN. We have asked for it. We cannot get it. We hope

you can produce it. But, in any event, the fact that there are no

records available that even tell us how many people who are released on their own recognizance fail to show up for a hearing, it

seems to me, is a symptom of a very big problem. It is a large number. We should know it and we should do something about it. We

do not know it and we are not doing much about it. I will come

back to that on my second round.

Senator Collins.

Senator COLLINS. Thank you, Mr. Chairman.

Mr. Pearson, you stated that the INS recognizes that there is a

threat along the Northern Border and coastal areas and that you

are, ‘‘reevaluating your current enforcement strategies to identify

any gaps,’’ and you also note that you are committed to deploying

additional staff to the Northern Border now. The security of our

Northern Border has long been a concern of mine, and I have

pushed for some time for increased funding so that we can expand

the agents and inspectors who are responsible for the security of

our Northern Border. Can you tell us how many agents you feel the

Northern Border needs in order to provide appropriate security and

checks?

Mr. PEARSON. Senator, let me, if I may, first state that when I

said we were evaluating, that was in response to the Border Strategy, with the four phases. As I explained, we were in phase two,

but we continually reevaluate where we are, which is why over the

last 3 years we have increased the Northern Border and coastal by

25 percent. It is not just sticking with that strategy. We have approximately 334 Border Patrol agents up on the Northern Border

right now. Our goal, our expectation right now, is to increase that

to roughly 1,000.

Senator COLLINS. How would that compare with the number of

inspectors and agents that we have along the Southern Border?

Mr. PEARSON. Well, comparing it to the Border Patrol agents, we

have about 8,000 along the Southwest Border right now. I would

13

1See Exhibit No. 12 which appears in the Appendix on page 139.

just ask you to remember that 97 percent, 98 percent of our apprehensions are on the Southwest Border. There is more along the

coastal area than there are along the Northern Border, but we recognize that any Border of the United States is a possible avenue

for somebody to try to get in.

Senator COLLINS. Well, if you have 8,000 agents, you are obviously going to have more apprehensions than if you have only 340,

or even 1,000.

Mr. PEARSON. That is true, but the volume of crossers is significantly higher on the Southwest Border. That is why we had 1.7

million arrests there last year.

Senator COLLINS. Some of the ports of entry prior to September

11 were actually not staffed during certain nighttime hours, along

the Northern Border. Has that problem been remedied?

Mr. PEARSON. We have a number of ports of entry that were not

24-hour ports. They were convenience ports, ports that were not

used at night, were only used during certain times of day because

of local crossers, and we staffed it during the time the port was

open. At night, while the port was closed, we would have other—

or we would have the ability to monitor, in some cases through

camera systems or through sensors, and we would be able to respond to that port if somebody crossed.

After the events of September 11, we have taken all our ports of

entry, with the exception of the seasonal ones, and we have

manned them 24-hours-a-day, 7-days-a-week, with two people at a

time as a minimum. Those that are seasoned ports of entry—because there are some ports that close, just physically cannot be

used—we have two of those right now that are closed, they are

sealed. But, again, we have sensors and the ability to respond if

we have the indication that somebody has tried to cross there.

Senator COLLINS. A concern that the INS inspectors have expressed to me in some of the smaller ports of entry in Northern

and Western Maine is that at times there is only one person on

duty. It may not actually even be an INS inspector. It may be a

Customs inspector who has been deputized to act as an INS inspector. Did I understand you to say that that situation has been remedied now, so that there would be two people on duty at all times?

Mr. PEARSON. Yes, Senator, that is two people, 24-hours-a-day, 7-

days-a-week. But it might be two Customs, two INS, or one INS

and one Customs. That is a minimum of two.

Senator COLLINS. Thank you. I would now like to ask you to respond to a series of statements and concerns raised in the testimony of our next panel of witnesses. Does the INS have a policy

mandating that any record checks must be completed on aliens who

are apprehended?

Mr. PEARSON. Senator, I have a chart I would like to show you,

if I may put this up. This chart,1 I think, will help graphically

show the process and answer your question. It certainly looks cumbersome, but it is really not. If we look at the diamond in the second row, an arrest—that the determination of alienage and nationality is made, certainly if it is a U.S. citizen, we have no authority

over immigration offenses for the person. But the process is to enVerDate 11-MAY-2000 11:01 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 77437.TXT SAFFAIRS PsN: SAFFAIRS
14

1See Exhibits No. 4 and 5 which appear in the Appendix on pages 76 and 77.

roll the subject into ENFORCE and IDENT. As I explained in my

oral testimony, those are the systems we use that tell us there is

an immigration issue. ENFORCE is our case management tracking

system that tells us who we have already had, who we are looking

for, that type of stuff. The IDENT system is biometric. The advantage of biometrics, it does not matter what name the person gives

us, tells us. Once we put them in the system, we can bring them

back up to determine that we have had them in our custody before,

and we have a lookout system in there.

The lookout system is designed to advise the agent or the apprehending officer that there may be a problem here, either because

the person is dangerous, he has caused problems when arrested before, as well as Federal fugitives. We have taken the U.S. Marshals

Service list of foreign-born fugitives and put them in our system,

to include their fingerprints, so that if in the course of crossing the

Border between the ports of entry, if the Border Patrol runs into

this person, we can effect an apprehension. We have also worked

with the FBI on entering foreign-born Federal fugitives. That is the

requirement.

Then the Border Patrol agent has options—and there are a number of reasons for this—has the options of what they are going to

do next. If they have the information, they want to run the person

through NCIC, they may be able to do so. Ofttimes, with the Border Patrol, because they are working away from offices, buildings,

they do not have a means to do an NCIC check on-site, but they

have the opportunity to take the individual back to a station, back

to a place where they could run NCIC or other indices checks.

Senator COLLINS. But, as a practical matter, isn’t that a very

cumbersome process? If, in fact, you have got all these different

databases and the Border Patrol agent has to check each one of

them, does that happen?

Mr. PEARSON. It certainly does happen, in many cases. But, you

recall, I had talked about ENFORCE. ENFORCE is not completed.

When it is done, it is designed to include all the INS indices, so

that there would be a single check, and the IDENT system, we are

currently working with the FBI, through the Department of Justice, to tie the IDENT system with the FBI’s IAFIS system—that

is an Integrated Automated Fingerprint Identification System—so

that when it is completed, our IDENT system will be able to access

FBI files to determine biometrically if a person is wanted.

Senator COLLINS. But, right now, does the INS have a policy

mandating these record checks, particularly criminal background

checks, or is it at the discretion of the Border Patrol agent?

Mr. PEARSON. The mandate is for IDENT and IAFIS, not for anything else.

Senator COLLINS. Now, as I understand it, from looking at Form

I–213,1 and as you have just explained, there are a number of databases. There is a central index system, a deportable alien control

system, a non-immigrant information system, an operational activity special information system, a student-in-school system, and the

National Crime Information Center. Do these databases interact

with one another? Now, I realize the NCIC is not maintained by

15

the INS, but, as I understand it, the rest are. Do they cross-reference each one, or does the Border Patrol and the INS personnel

have to individually check each database?

Mr. PEARSON. They do not interact automatically right now. The

ENFORCE system is designed to do that. It is not completed yet.

Senator COLLINS. When do you anticipate that the ENFORCE

system will be completed, so that these Border Patrol agents and

INS agents, who are already overworked and strapped for time, do

not have to check multiple databases?

Mr. PEARSON. Senator, I do not recall the timeline on that, but

I would be glad to get that information to you. I know the DACS

system should be up by the end of 2002 or in 2003. We are working

on all of this systemically.

Senator COLLINS. Thank you, Mr. Chairman. I see my time has

expired.

Senator LEVIN. Going back to IDENT and IAFIS, IDENT is not

a criminal background checking system; is that correct?

Mr. PEARSON. That is correct.

Senator LEVIN. But the NCIC is?

Mr. PEARSON. The NCIC system run by the FBI has a number

of components to it. It can have wants and warrants, which is a

criminal system that lets you know who a warrant is listed for. The

NCI Triple–I has criminal history, but NCIC also has a number of

other things in there, list of stolen vehicles, list of missing people,

list of stolen weapons, that type of stuff. NCIC is not one master

database. That also combines different databases.

Senator LEVIN. And are Border Patrol agents required to run an

NCIC check on every person whom they arrest?

Mr. PEARSON. No, sir, they are not required to do so.

Senator LEVIN. Why?

Mr. PEARSON. Well, there are a couple of reasons for it; primarily, as I talked about, a lot of times these arrests are made out

where there is no system available; they are out on the Border.

Particularly if you are going to do a voluntary removal in the numbers we have talked about, it stops you from bringing people back

and running these checks that take a lot of time. I would ask you

to remember that with 1.6 million arrests, or even 1.2 million for

last year, these systems do take time to run. So there is no requirement, but the Border Patrol agent has the option, the opportunity

to do so, based on their experience.

Senator LEVIN. Is everybody who is released on their own recognizance required first to have an NCIC check?

Mr. PEARSON. No, sir.

Senator LEVIN. Why?

Mr. PEARSON. For the same reason that I just talked about, and

that is we leave it up to the agent’s experience to make that determination. The requirement is to run IDENT and ENFORCE.

Senator LEVIN. But that is not a criminal background check?

Mr. PEARSON. That is correct.

Senator LEVIN. So you are releasing people on their own recognizance without a requirement for a criminal background check.

Mr. PEARSON. There is not a requirement right now.

Senator LEVIN. Does that trouble you?

16

1See Dec. 20, 2001 Memorandum from Michael Pearson to INS Regional Directors (Exhibit

No. 13) which appears in the Appendix on page 140.

Mr. PEARSON. The concept troubles me, Senator. When you get

out in the field, as a practical matter, when you are talking with

the over a million people we arrest, we have to rely a lot on the

individual agent’s judgment and the time it takes to do these

things.

Senator LEVIN. Now, the huge percentage of those people are voluntarily returned; is that correct?

Mr. PEARSON. Of the 1.2 million, yes, sir.

Senator LEVIN. We are just talking now about the thousands that

are arrested, not voluntarily returned, then released on their own

recognizance. For those people, there is no requirement that there

be a criminal background check; is that correct?

Mr. PEARSON. Senator, that is correct, there is no requirement.

There is certainly no prohibition and the agent can run it, but we

do not have a policy that requires that.

Senator LEVIN. Do you know in how many cases where people

are released on their own recognizance, approximately, there is no

criminal background check?

Mr. PEARSON. I do not know, Senator.

Senator LEVIN. Shouldn’t we be troubled by it? I mean, these are

people illegally entering the country. This is not the complicated

question of how many people should we allow into the country;

these are not the complicated questions whether people ought to be

able to extend visas or not or change visas or not, or under what

circumstances should people be granted visas; and this is not a

matter of family reunification. These are people arrested by the

Border Patrol for illegally entering the country, who are released

on their own recognizance in the country, after they are arrested,

that we do not even run a criminal background check on. I find

that incredible. We are talking about that limited group. I am not

talking about the million, most of whom are returned voluntarily.

I am talking about the thousands who, after they are arrested—

again, a significant number of whom are arrested actually trying

to enter the country by the Border Patrol, are just released on their

own recognizance without a criminal background check, without accessing data which could tell us whether or not they are on a watch

list, for instance, or whether they have a criminal record. I find it

absurd. It is not functional for that group of people.

I know there are a lot of complicated immigration questions out

there, but I have got to tell you this one does not strike me as

being complicated, when you arrest someone for illegally attempting to enter the country. Now, is that going to stay that way or are

we going to change this?

Mr. PEARSON. Senator, we will certainly relook this.1 When I said

there is no requirement, it is because we do not have a policy that

says they must do that. However, before a release is made, the

agents are required to go through the process that I had talked

about in my oral testimony; determine whether or not they are a

flight risk; determine whether or not they are a danger to community; determine whether or not it is a mandatory detention. You

are not going to do those three unless you do some type of indices

17

1See Exhibit No. 4 which appears in the Appendix on page 76.

check. So they should be done, but your direct question was is

there a policy requiring this, and there is not.

Senator LEVIN. We do not know in what percentage of cases they

are done?

Mr. PEARSON. I do not have that.

Senator LEVIN. We do not know what percentage—let’s put the

form up there.1 Is this the I–213 form?

Mr. PEARSON. I–213, yes, sir.

Senator LEVIN. About the fifth line or so from the bottom, where

it shows all of the information which could be accessed—we have

got record checks completed, CIS, DACS, NCIC, NIIS, and OASIS.

If those are useful, why shouldn’t they all be accessed before somebody is released on their own recognizance?

Mr. PEARSON. The appropriate ones need to be checked to determine whether they are a mandatory detention, whether they are a

flight risk or whether a danger to the community.

Senator LEVIN. Yet there is no requirement that they be

checked?

Mr. PEARSON. There is not a requirement to do each and every

one or any one.

Senator LEVIN. Where people are just simply released on their

own recognizance, you do not know in what percentage of those

cases that information is accessed?

Mr. PEARSON. I do not know.

Senator LEVIN. I think we ought to find out, we ought to change

it and there ought to be some real energy behind that effort, because this, it seems to me, is a no-brainer. Now, why are people

released on their own recognizance? Let’s get to this point, where

they are arrested for illegally entering the country and do not voluntarily return. Why they are released on their own recognizance

is because we have a shortage of detention space while they are

awaiting their hearing, whether it is a hearing for a removal or a

hearing for asylum. Why aren’t people detained pending that hearing if they are arrested for illegally entering the country—not at

a port of entry? These are not folks who come into an airport or

go through a bridge or tunnel. These are people who have either

been caught in the act of entering the country at some point other

than a port of entry, or are caught inside of the country, being here

illegally. Why aren’t they detained pending the hearing?

Mr. PEARSON. Well, there are two primary reasons. The first is,

as you talked about—or one of the two reasons is the detention

space. As I stated earlier, last year we arrested 1.2 million people

in this country. We are funded for 19,700 bed spaces on a daily

basis.

Senator LEVIN. Can we get back to that million figure, though?

The vast majority of those voluntarily return, so that number is not

the number we are talking about. We are talking about the people

who do not voluntarily return, who then say, even though they are

caught entering illegally here, they want a hearing, to which they

are entitled. The question is why aren’t they detained? Why do we

not have enough spaces? Have we asked for more spaces and been

18

denied those spaces by OMB? What is the scoop and how do we correct it?

Mr. PEARSON. Within the 19,700 bed spaces, we have spaces for

those that are mandatory detention, under the INS. We also have

space for criminal aliens that are not mandatory detentions. That

leaves little space for the rest. So after the arrest is made, a determination is made on whether or not detention is appropriate. The

second part of what I was talking about is the determination on

whether or not the person is a flight risk or a danger to the community. If they are not, discretion can be used to release the person, and that is how a decision is made.

Senator LEVIN. Isn’t everybody who is seeking to enter the country illegally, not at a port of entry, a flight risk?

Mr. PEARSON. Not necessarily.

Senator LEVIN. What percentage of people who seek to enter the

country illegally, not at a port of entry, who are arrested, are not

a flight risk?

Mr. PEARSON. I cannot give you a percentage, but we arrest people often who have ties to the community, have equities, have families, have a house, and they are not considered a flight risk.

Senator LEVIN. They are inside the country.

Mr. PEARSON. Yes, sir, but——

Senator LEVIN. Let’s take the narrowest group, which may be

half of the people who are arrested by the Border Patrol at the Border.

Mr. PEARSON. Senator, Detroit Sector arrested 2,100 people last

year; only 103 of those were arrested at the Border upon entry.

Senator LEVIN. That is not what we were told by the Detroit Sector, but we will get that by the other testimony. But we have very

different figures on the Detroit Sector than you do, but whatever

that figure is, why are those people not automatically a flight risk?

Whatever that number is, just for starters, just take that narrow

case, aren’t they automatically a flight risk?

Mr. PEARSON. I would not say that they are automatically a

flight risk, no, sir.

Senator LEVIN. OK. Senator Collins.

Senator COLLINS. Thank you, Mr. Chairman.

Mr. Pearson, one of our next witnesses will testify that, due to

a lack of funding, many aliens who are apprehended along the

Northern Border are instructed to leave the United States within

30 days. These individuals are then released, and according to this

witness, there is no process for verifying whether or not they actually left within the 30 days. Is that accurate?

Mr. PEARSON. That is an accurate statement. When we do the

voluntaries, the person is given a time period, either by INS or the

judge, to remove themselves, or we can do a voluntary return

under safeguards, where we keep them in custody and physically

make sure they either cross the Border or get on a plane to return

to their home country.

Senator COLLINS. If there is no system for checking to ensure

that the individual actually has left within 30 days, as promised,

isn’t it likely that a lot of people are not leaving?

Mr. PEARSON. That certainly could be the case.

19

Senator COLLINS. Are some aliens released on bond or their own

recognizance, despite the fact that the INS has not been able to establish positive identity, nor verify the legitimacy of the U.S. address or phone number contact information that they provided?

Mr. PEARSON. That certainly could be the case, Senator. In order

to determine flight risk or determine danger to community, those

checks should be done. As I said, we do it under ENFORCE and

IDENT, and do the biometric checks, so we can try to make sure

we know who they are.

Senator COLLINS. How often does someone have to be apprehended entering the United States illegally before that person is

actually prosecuted?

Mr. PEARSON. There is not a set magic number. Each U.S. Attorney determines their own threshold for prosecution.

Senator COLLINS. Would you be surprised to learn that we have

been told by some Border Agents and INS inspectors that an individual could cross illegally and be apprehended a dozen times before there was any prosecution?

Mr. PEARSON. That would not surprise me. I have spoken with

U.S. Attorneys who have told me, that their threshold is higher

than that, and they are the ones that make the decision, before

they will take it to prosecution.

Senator COLLINS. What concerns me is that it seems like this

whole system lacks safeguards, lacks checks to ensure that people

really are leaving; that despite the fact that we have an enormous

number of people who have been arrested, that we really do not

have a very good system for checking records, for verifying that

they are who they say they are, for ensuring that they do leave,

for ensuring that they do show up for hearings. It just strikes me

that the whole system is so porous and lacks so many safeguards

that it is a serious threat to our national security.

I think it goes beyond the most egregious case that this hearing

is focusing on, because it seems to me that the whole system is just

too loose.

Mr. PEARSON. Senator, the only ways we have right now to make

sure a person leaves is if we check with the country that they went

to to make sure they are back, and we do that on occasion; if we

get the automated I–94 that shows they got on a plane and left the

country, or we detain them until we remove them across the Border, and this does apply to those voluntary removals. So we are

back up to the 1.2 million. We simply do not have the detention

space to detain everybody, to make sure that they are physically

removed from the country.

Senator COLLINS. But if you are not doing the kinds of checks

that would help you identify those who are most at risk for staying

illegally in the United States, how are you going to get a handle

on this problem? If you are not necessarily following up on contact

information or necessarily doing a positive identity on the person,

then how are you going to get a handle on the group that is most

likely trying to enter illegally, perhaps to cause harm to our citizens?

Mr. PEARSON. Our focus is on the higher-risks. Remember, I did

not say the checks were not done. I said there is not a requirement

to do them. But we do check and we do follow up on the higherVerDate 11-MAY-2000 11:01 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 77437.TXT SAFFAIRS PsN: SAFFAIRS
20

level categories, those that are aggravated felons, those where

there is a want and warrant, those that are criminal aliens, but

when you get below that level, it is a resource issue. It is truly a

resource issue.

Senator COLLINS. Well, let me talk to you about one category

that has come to our attention lately as a result of the attacks on

our Nation. The previous administration’s INS commissioner said

that catching individuals who overstay the terms of their visas was

a very low priority of the INS, and that she thought it should remain a low priority. Well, we know now that a number of the 19

terrorists responsible for the attacks on September 11 reportedly

overstayed their visas, and, by law, they could have been deported.

What is the current administration’s view on visa violations,

overstays, and what priority is now being given to pursuing individuals who overstay their visas?

Mr. PEARSON. Well, let me start by saying things have changed

since September 11. Your quote of President Bush was exactly accurate. By our estimates, there are approximately between 5 and

6 million people in this country illegally—you had said 8 million in

your opening statement—40 percent of whom are overstays. Of that

group, the 5 to 6 million, our first priority right now is working

with the Federal Bureau of Investigation, and we are working with

the CIA, to see who are we looking for that might be involved in

terrorist incidents. So that is our highest priority.

Now, the Border Patrol is on the Border, trying to secure the

Border. On the interior, we have investigators looking for these

people, but we have fewer than 2,000 criminal investigators in INS,

and over half of those right now are working full-time, dedicated

on the terrorist mission. When you then look at who else we have

in this country, our priorities are aggravated felons, the criminal

aliens, that type of stuff. So it is not that an overstay is not important—they are—but when you put it on a priority basis, if we do

not have information of terrorist connection, terrorist ties, a suspect, or they are not a criminal alien or they are not an aggravated

felon or they are not a mandatory detention, they do not raise to

the level of where we can put many resources right now. It is certainly not that they are not important.

Senator COLLINS. Well, I think a lot of that also goes to the

granting of visas in the first place and making sure that we have

better sharing of information among law enforcement and intelligence agencies, so that we could stop some of these individuals

from coming here in the first place. Just one final comment: The

8 million figure that I used as a U.S. census figure, I would suggest

to you that we do not know how many illegal aliens we have in the

United States, given how porous the system seems to be.

Thank you, Mr. Chairman.

Mr. PEARSON. Senator, if I may, we would agree with you. We

do not know, but we have worked with the Census Bureau on

where they got their number, and we are confident that ours is a

much better number.

Senator LEVIN. Thank you. Senator Carper.

21

OPENING STATEMENT OF SENATOR CARPER

Senator CARPER. Thank you, Mr. Chairman, and to our witnesses

this morning, welcome. I regrettably missed your presentation. I

have listened to some of the questions and some of your responses,

both here and in the anteroom outside. You were talking there at

the end with Senator Collins about numbers. I think she mentioned

the Census Bureau number of 8 million, and that differs from your

number. Can you just share with me your number?

Mr. PEARSON. Our number is somewhere between 5 and 6 million, and we do not have an exact number.

Senator CARPER. Fair enough. I am just going to come right to

the nub of the issue here. What do we need to do? Not so much

what you need to do, what do we need to do here in the Congress

to help you do your job better?

Mr. PEARSON. There are a number of things. The Attorney General has been working with the administration on changes to the

law. We have been working with the Department of Justice and

will be coming to Congress, and we are working with OMB for additional resources. We all recognize—and the purpose of this hearing is to show that the Northern Border does not have enough assets. We need to increase that, and it is not just personnel. It is

some of the systems we are talking about. We do need some assistance.

Senator CARPER. What kind of systems?

Mr. PEARSON. ISIS, for one. These are systems where we can

have our cameras tied directly to sensors, so that if a sensor goes

off, showing movement, we can have a camera check it immediately

to determine if it is people or it is an elk or a moose or a deer that

triggered it, so we do not have to take the limited resources we

have and send them where they are not necessary. But they will

also be able to tell us when people are crossing, either at a port

of entry after it has closed or between ports of entry, and we can

track and film and tape where these people are going, so that we

can better utilize the resources we have to go effect the apprehension.

Senator CARPER. How many people are taken into custody each

year by the Border Patrol?

Mr. PEARSON. Last year, it was 1.2 million. The year before, it

was 1.6 million.

Senator CARPER. Do I understand that over half of them are returned voluntarily or involuntarily to the countries of their origin?

Mr. PEARSON. The majority of them are Mexicans. In fact, 98

percent are Mexicans. About 60 percent or so are returned voluntarily, just taken right back to the Border and turned over to authorities.

Senator CARPER. Why wouldn’t that number be higher?

Mr. PEARSON. Because, in a number of cases, we are running our

indices checks and we will take them into detention, either because

they are wanted, they have been in our system before, we intend

to prosecute for crossing illegally. It is those that do not raise the

threshold that, I was talking about earlier, and we do not determine that either they are a flight risk or a danger to the community, and they are not a mandatory detention case, that we would

effect a voluntary removal.

22

Senator CARPER. When someone is taken into custody and

deemed to be in our country illegally and the intent is to return

them to their own country, how are they actually returned, physically returned, to their country of origin?

Mr. PEARSON. We must first go to the country that we wish to

return them to. Hopefully, it is their country of citizenship, but

that is not always the case. We will work with that country to get

travel orders. Now, this is assuming that any appeal, which is a

ruling made by the immigration judge, will have a final order, either there is no appeal or, if there is an appeal, that is finished,

then we will work with the country to get travel documents for the

individual, and we will physically, if it is overseas, we will put

them on a plane, sometimes under escort, sometimes not, to remove

them from this country.

Senator CARPER. That is how 60 percent of the folks who are

here illegally are returned?

Mr. PEARSON. Now, the majority of these are Canadians and

Mexicans already at the border, and with the voluntary departure,

we will just take them to the border and let them cross.

Senator CARPER. Do they come back in?

Mr. PEARSON. Many of them do. That is why the IDENT system

was developed. It was initially a recidivist database, so we would

know who was a repeat entry, in order to prosecute.

Senator CARPER. When people come in repeatedly, do we treat

them differently than we do the first time that we detain them?

Mr. PEARSON. Well, I am not sure what you mean, treat them

differently. If they have crossed often enough that they meet the

threshold for prosecution by a U.S. Attorney, we will detain them

for prosecution. If they do not meet that threshold, we may still detain them, based on whether or not they are a danger to the community or a mandatory detention. Other than that, we will generally return them voluntarily.

Senator CARPER. Let me just go back and see if I have these

numbers right. You say 1.2 million are—— Mr. PEARSON. Were arrested by the Border Patrol last fiscal

year.

Senator CARPER [continuing]. Coming in illegally, roughly 60 percent are returned.

Mr. PEARSON. My recollection is about 60 percent. The Chief here

says he believes it is higher, but he does not have the exact number, either.

Senator CARPER. That leaves maybe 30 or 40 percent that stay

in this country for a longer period of time. On average, the folks

that are returned, how long do they stay in this country?

Mr. PEARSON. I cannot answer that question. Those that we have

in detention, each country is different, depending on whether or not

the individual appeals or how long it takes to go before the appellate process and how long we will keep them in detention.

Senator CARPER. Somebody just handed you a note.

Mr. PEARSON. That was to a different question, though. It did not

answer your question directly. The 60 percent figure that I gave

you is for the Northern Border, according to this note.

Senator CARPER. The folks that are detained here and eventually

returned, when they are detained here, where do we keep them?

23

Mr. PEARSON. There are a number of places. We have our own

detention facilities. We have nine of them nationwide. That does

not cover anywhere near all our detention space. We have a few

contract facilities, and we spend a lot of money contracting with

locals, the county sheriff, for example, and using their detention,

their bed space. That is where the majority are kept.

Senator CARPER. At any one time, any idea how much bed space

you are using?

Mr. PEARSON. We are funded for 19,700 a day. So somebody that

stays with us 6 months or a year counts every day. Those that are

only here 3 or 4 days, that bed is used over again.

Senator CARPER. The folks who are not staying in one of those

19,700 beds, where are they?

Mr. PEARSON. I am sorry?

Senator CARPER. The folks who have come here illegally who

have not yet been returned, but who are not taking up one of those

19,700 beds, where do they stay?

Mr. PEARSON. Well, some of those, as we talked about, are released. They are released on bond or they are released on their own

recognizance, many of whom have equities to the community. They

have families, they have a house, and they will stay at their house.

Senator CARPER. Are there often times when they do not, and

when the time comes to find them, we cannot?

Mr. PEARSON. That is the case, yes, sir.

Senator CARPER. What do we need to do about that? When I say

we, you and INS.

Mr. PEARSON. Yes, sir, I understand. The primary reason that we

do not detain somebody is because of lack of detention space. If we

know they are a mandatory detention, if we know they are a flight

risk, if we know they are a danger to the community, we will do

everything we can to detain them. Even if the Sector or the District

does not have the space, we will go up to the Region and create

some space somewhere. Ofttimes we have moved people five or six

States away, just so we have a detention space. But those that do

not meet the threshold, meaning they are not a mandatory detention, they are not a flight risk, they are not a danger to the community that we can establish, they would be released, either on bond

or on their own recognizance. We require or ask that they give us

an address where we can reach them, but there is nothing that requires them to stay at that address.

Senator CARPER. Mr. Chairman, thanks. Again, to our witnesses,

thank you very much for your testimony and for your responses to

our questions.

Senator LEVIN. Thank you, Senator Carper.

If there is a danger to the community, that is your No. 1 priority,

and yet there is no requirement that you even do a criminal background check; is that correct?

Mr. PEARSON. There is no requirement that we do the criminal

background check, that is correct, Senator.

Senator LEVIN. You do not know in what percentage of the cases

where people are released on their own recognizance that there is

a criminal background check?

Mr. PEARSON. Senator, I do not have that data. No, I do not

know.

24

Senator LEVIN. Or you do not know if that data is even kept.

Mr. PEARSON. That is correct.

Senator LEVIN. That is not what I would call a priority, I have

got to tell you. To say it is a priority, that people who are a danger

to the community be detained, and yet there is no requirement that

there be a criminal background check, you do not keep a record as

to whether or not criminal background checks are kept on what

percentage of the people who are released. It is not—in my definition of priority—coming close to being a priority. So it ought to be.

I think that a criminal background check ought to be done on

anybody before they are released on their own recognizance. I am

amazed that that is not a requirement. Let me ask Mr. DeLaVina,

why don’t we do a criminal background check on everybody before

they are released on their own recognizance?

Mr. DELAVINA. Well, sir, the biggest safeguard for the Border

Patrol, and I concur, the system is not perfect, the biggest

safeguard——

Senator LEVIN. The system is what?

Mr. DELAVINA [continuing]. For us is the men and women that

we are sending up North. These are seasoned agents; they are experienced. Even though it is not a requirement, I feel very confident that every Agent that is up North, if they come into contact

with a person that they feel is a criminal or has some extenuating

circumstances, they are going to run the checks, they are going to

do everything they possibly can. The problem is a matter of funding or detention space.

Senator LEVIN. How many spaces do you need? How many have

you asked for from OMB, for instance, this year?

Mr. DELAVINA. I would have to defer to Mr. Pearson on that.

Senator LEVIN. Do you know, Mr. Pearson?

Mr. PEARSON. I do not recall the number precisely this year, but

I will certainly get it to you.

Senator LEVIN. Did you get what you asked for?

Mr. PEARSON. No, sir.

Senator LEVIN. Can you tell us what percentage less than you

asked for, you got?

Mr. PEARSON. I do not recall the number, but I will be glad to

get that information to you.

Senator LEVIN. A significant number?

Mr. PEARSON. Senator, I am not playing a game. I do not know

how to define significant here. I do not recall the number.

Senator LEVIN. Going back now to the information systems which

are available to you, is it—is that pronounced IBIS?

Mr. PEARSON. We call it IBIS. That is the Inter-Agency Border

Information System. There is also ISIS; that is the one I was talking about with the camera systems tied to the sensors.

Senator LEVIN. On the IBIS system, that system is a system

which has a lot of very significant information that is available to

you; is that correct?

Mr. PEARSON. That is correct.

Senator LEVIN. That is accessed at the ports of entry?

Mr. PEARSON. At the ports of entry, yes, Senator.

Senator LEVIN. What does that tell us?

25

Mr. PEARSON. Well, that ties into the systems, that we can do an

NCIC check, we can do a NIIS check. We can look for terrorists.

We can look for wants. That is all tied into one system. We do not

have that available for the Border Patrol yet.

Senator LEVIN. Well, before someone is released by a Border Patrol agent, can’t they access the IBIS system?

Mr. PEARSON. In most parts of the country, they could take the

individual to a port of entry and ask that it be accessed, yes, sir.

Senator LEVIN. Before we release someone on their own recognizance, why don’t we do that?

Mr. PEARSON. Senator, I cannot answer the question this time

any better than I could the other of couple times you asked.

Senator LEVIN. I did not ask that question before. This is the

first time I have asked the question as to why we do not require,

before someone is released on their own recognizance, who has attempted to enter the country illegally, we do not access the system

which can tell us whether or not that person has a criminal record,

whether they are on a terrorist watch list, and all the other information that somebody at a port of entry does routinely? Why don’t

we require that for someone who enters not at a port of entry?

Mr. PEARSON. Senator, I understand. We do not require it right

now. We will relook at the policy.

Senator LEVIN. Mr. DeLaVina, why don’t we do that?

Mr. DELAVINA. Well, sir, I think that is one of the problems that

we need to take a look at.

Senator LEVIN. Part of the IBIS system, I think, is a National

Automated Immigration Lookout System; is that correct? That is

maintained by the INS?

Mr. PEARSON. Yes, Mr. Chairman.

Senator LEVIN. And that is called NAILS, too?

Mr. PEARSON. NAILS, yes.

Senator LEVIN. NAILS contains certain information on persons

who may be removable from the United States for membership in

terrorist organizations or other illegal activity. That information

comes from classified State Department database or other sources.

It is accessed, again, through IBIS. But you have already now told

us you do not access IBIS, the Border Patrol does not do it; they

do not take folks to the port of entry to do it. You are going to see

if that should be changed. I will tell you it should be.

Tell us what you need to do to change it. It is not a change in

law, that much I know. It is either resources or policy. Whatever

it is, you tell us if we need to do anything, because it is absurd that

people who try to enter not at a port of entry are not checked the

same way that someone who enters at a port of entry is checked.

I mean, it is counterintuitive to me. But, putting that aside, let’s

just now look at your own system. This is an INS system now. This

is the National Automated Information Look System. Are people

who are arrested by the Border Patrol, not at ports of entry,

checked against that system?

Mr. PEARSON. That system is through IBIS, and not all Border

Patrol are close enough to a port of entry to go use IBIS.

Mr. DELAVINA. That is correct.

26

1See Exhibit No. 2 which appears in the Appendix on page 74.

Senator LEVIN. But I am not talking IBIS now. It is part of IBIS.

It is entered into IBIS, but this is the INS system, NAILS, is that

correct?

Mr. PEARSON. It is; yes, sir.

Senator LEVIN. This is an INS system. This is not the joint system, the combined system. This is just the INS’ own system that

you do not access for these folks who are arrested, other than at

points of entry. Try that one on me.

Mr. DELAVINA. I am looking at the box here. Basically, we use

the IDENT, and we use the ENFORCE.

Senator LEVIN. I know that, but why don’t you use your own

NAILS system?

Mr. PEARSON. Senator, I do not know where NAILS is accessible.

I do know that it is through IBIS. Again, I can find that information. I will get back to you.

Senator LEVIN. OK. Now, the State Department maintains a system called Consular Lookout and Support System, that is called

CLASS. It contains the names and biographical data on known and

suspected terrorists. Consular officials are required by law to check

the visa lookout system before they issue a visa in another country.

INS agents are not required to check that system before someone

is released on recognizance; is that correct?

Mr. PEARSON. It was not a matter of ‘‘not required;’’ we did not

have availability for the system everywhere. We had been working

with the State Department post-September 11 to be able to get that

at our ports of entry.

Senator LEVIN. What about for Border Patrol folks between ports

of entry? You are shaking your head, Mr. DeLaVina.

Mr. DELAVINA. We do not have it.

Senator LEVIN. You do not have it. Are you going to get it?

Mr. PEARSON. Senator, we fully intend to. We want all of this to

be integrated. We are just not there yet.

Senator LEVIN. But it is in process, some of this, all of it?

Mr. PEARSON. For the CLASS to be at our ports of entry as the

first step, yes, that is in process.

Senator LEVIN. But is it also a step for someone who is arrested

other than at a port of entry, before they are released on their own

recognizance, that this CLASS system must be—I do not want to

call it a class system—this CLASS procedure be accessed? Is that

in process?

Mr. PEARSON. Our intent is for ENFORCE to be able to tie all

of those together so that a Border Patrol agent or an inspector can

check one source and get all the information.

Senator LEVIN. OK. That is in process?

Mr. PEARSON. Yes, sir.

Senator LEVIN. When will that be done?

Mr. PEARSON. I do not have a date on that. I explained earlier,

I can give you the timelines for ENFORCE. I do not know that we

have talked about CLASS other than the ports of entry, but certainly it is the next logical step.

Senator LEVIN. Finally, I would like to put another chart on

here.1 This is the current system. This is a notice to appear. We

27

have whited over the name of the respondent. This is a real case.

This person here, where it says number, street, city, State and ZIP

code, do you see that, under the redacted?

Mr. PEARSON. Yes, Senator, I see that.

Senator LEVIN. That person failed to provide any number, just

failed to provide an address. He is deportable for the reasons

below. He is not a citizen. He is a native of Bangladesh. He is admitted to New York on April 16 as a visitor, and it turns out that

it was fraudulent, and now he is arrested. This guy is in our hands.

We have got him. He procured his admission by willful misrepresentation, because he used the passport of somebody else. He is arrested by the Border Patrol, we have got him.

What is done? He is given a piece of paper. He is told to appear

before a judge, and the time is to be set, and how is he supposed

to be notified? This is a real notice to appear. How is this guy going

to be notified? He is going to be notified at the address provided.

He did not provide an address. He is given a piece of paper. He entered illegally, used a false passport. He is now arrested by a Border Patrol agent. He is given a piece of paper, saying ‘‘you will be

notified of a time to appear’’ for a notice to remove you. Here is a

guy sneaking in here illegally, but he is given a piece of paper, saying, ‘‘Here, we will notify you when the date and time of a removal

hearing is, at the address above,’’ and there is not even an address

above. What in Heaven’s name is going on?

How is it possible, with all these other gaps and holes, that this

is a guy who is arrested by Border Patrol, who previously had used

false documents, he is released on his own recognizance? Are you

amazed at this or not? Is this so routine that you are just not even

troubled by it, Mr. Pearson? I am trying to see if we cannot get you

as involved in the cure of this problem as I think we are and I

think the American people are, and maybe you are, but I have got

to get a feeling, and I have not gotten it yet, that there is some

real energy here.

Let’s start with this: Does that amaze you?

Mr. PEARSON. Absolutely.

Senator LEVIN. It does.

Mr. PEARSON. It amazed the Chief Patrol Agent when I spoke

with him about it, too. This clearly should not have happened.

Senator LEVIN. Do you think this is real rare?

Mr. PEARSON. I do not know how rare it is. I certainly hope it

is real rare.

Senator LEVIN. I wish it were. We are going to hear from some

Border Patrol agents on that subject.

Senator Collins.

Senator COLLINS. I have no further questions. Thank you.

Senator LEVIN. We thank you both for appearing, and we look

forward to the information that you have indicated will be forthcoming, and, Mr. Pearson, I do not know whether you are involved

in that personnel issue in any way or know anything about it, but

if you do, then you have heard from me of our concern. If you are

not, I know you will pass along to whomever would be responsible

for looking into that matter what this concern is, so we can take

care of that at another time, in another place. We are appreciative

of your being here.

28

Mr. PEARSON. Well, having said that, may I respond to that,

please?

Senator LEVIN. Of course.

Mr. PEARSON. I am basically aware of that case, but not of all

the specifications and charges. I do know, and I do believe, that

this is not any retribution or retaliation for appearing before this

Committee.

Senator LEVIN. No, that is not the question. The question is for

making a statement to the media and for talking to us, either/or.

I am interested as to whether or not this is happening because

somebody is blowing the whistle. That is the question here. This

Committee has been involved in protecting whistleblowers. In any

event, I do not want to—— Mr. PEARSON. I am very much involved in protecting whistleblowers. Mr. Hall and I have testified before, and he said the same

things, his concern with the Northern Border, and he was right in

that. So I will certainly—I will not get too close to this, because

there is always the potential that it could come up to me on appeal.

So I cannot get too close to this while the Chief and the Regional

Director are making their decision on any proposal.

Senator LEVIN. I thought I was concluded, but I just remember

there was one question. Do you happen to have your own statistical

yearbook for the year 2000, by any chance, with you?

Mr. PEARSON. INS Statistical Yearbook for FY 2000 has not been

published.

Senator LEVIN. You testified—used a figure that 21 percent

failed to appear, at a certain point in your testimony.

Mr. PEARSON. That was EOIR’s, their figures show 21 percent.

Senator LEVIN. The figure for the non-detained aliens, in that

same book, by the way, is 37 percent, not 21 percent; 21 percent

are overall failures to appear. That could be for either people who

are not detained or for other reasons. So I think you should correct

the record on that. But even the 37 percent, by the way, includes

a lot of people other than those arrested by the Border Patrol, and

the numbers which I used this morning were the estimates relative

to Border Patrol arrests, and that number, even 37 percent, is way

low, non-appearance, for people who have been issued notices to

appear, because it includes a whole host of other people, including

people who have overextended their visas and things like that, who

have not been arrested by the Border Patrol.

So you and I have had a little difference on numbers here this

morning, but if you will go back and take a look at your testimony,

you may want to correct any impression that you left relative to

that 21 percent, and tell us for the record, if you would, whether

that 37 percent number, in fact, is the more accurate number for

all people who are not detained, and then, if you would, get us the

statistic for the percentage of people released on their own recognizance who do not appear. That is the key, vital figure that we

are waiting for. We believe it is around 80 percent. Whatever the

percent is, we await that statistic.

Mr. PEARSON. I will be glad to relook at that, Senator.

Senator LEVIN. Thank you. Thank you, both. If we could now call

our second panel of witnesses: Mark Hall, Keith Olson, and Eugene

Davis. Our second panel of witnesses this morning is comprised of

29

1The prepared statement of Mr. Hall appears in the Appendix on page 61.

two current and one retired Agents of the Border Patrol. Mark Hall

is appearing before us this morning as President of Local 2499 of

the National Border Patrol Council. He is also a senior Border Patrol agent in Detroit. He works out of the Detroit Sector of the Border Patrol. Keith Olson is appearing before us this morning as

President of Local 2913 of the National Border Patrol Council. Mr.

Olson is also a senior Border Patrol agent, residing in Bellingham,

Washington, and he works out of the Blaine Sector of the Border

Patrol there. Eugene Davis is a retired Deputy Chief Patrol Agent

of the U.S. Border Patrol in Blaine, Washington, and we are

pleased to have all of you with us this morning. We look forward

to your perspective on the status of INS policy as it relates to persons arrested for trying to enter the United States illegally.

As I indicated with our first panel, all witnesses who testify before the Subcommittee are required to be sworn, and at this time

I would ask the witnesses to please stand and raise your right

hands. Do you swear that the testimony you will give before this

Subcommittee will be the truth, the whole truth and nothing but

the truth, so help you, God?

Mr. HALL. I do.

Mr. OLSON. I do.

Mr. DAVIS. I do.

Senator LEVIN. We will have a timing system again today. It is

a little black box in front of you. One minute before the red light

comes on, you will see the light change from green to yellow, which

will give you an opportunity then to conclude your remark, and

your written testimony will be printed in the record in its entirety.

So we would ask that you limit your oral testimony for up to 10

minutes.

Mr. Hall, I think we will start with you.

TESTIMONY OF MARK P. HALL,1 PRESIDENT, LOCAL 2499, NATIONAL BORDER PATROL COUNCIL, AND SENIOR BORDER

PATROL AGENT, U.S. BORDER PATROL, DETROIT, MICHIGAN

Mr. HALL. Good morning, Mr. Chairman, Members of the Subcommittee. My name is Mark Hall. I am the President of Local

2499 of the Border Patrol Council in Detroit. Our local represents

Border Patrol agents who patrol the U.S.-Canadian Border in

Michigan and Ohio. I have had the honor to proudly serve my

country as a Border Patrol agent for over 17 years, the last 14 of

them assigned to Detroit, Michigan. I want to thank you for the opportunity to testify on how the INS processes persons arrested for

illegal entry into the United States, outside of ports of entry.

In the aftermath of the tragic attacks that occurred on September 11, there is a compelling need to re-examine how the INS

processes aliens arrested entering the United States illegally. Unlike the U.S.-Mexico Border, where the overwhelming majority of

illegal aliens who are apprehended are citizens of a contiguous

country and can be returned there expeditiously, most of the illegal

aliens apprehended on the Northern Border must be held for several days in order to secure the necessary travel documents and/

or make arrangements to return them to their country of origin. In

30

most of these locations, including Michigan, the INS does not have

a facility to house such aliens, and must rely on available jail space

with local agencies, which charge a high price for this space.

Therefore, aliens are often released into local communities on

their recognizance in an effort by INS to save money and remain

within the budget. This practice was commonplace before September 11 and has not changed since. Although it is expensive to

detain and remove illegal aliens from our country, it is far more

costly to release potential terrorists into our communities. Representatives of this union have often pleaded with local INS and

Border Patrol management to reconsider this catch-and-release

philosophy, but have been ignored. This policy, combined with a decided lack of attention to our Northern Border, has been an inviting beacon for illegal entry into our country.

The Canadian government allows citizens of more than 50 countries to enter Canada without a visa. The United States requires

visas for citizens of more than 20 of the 50 countries for which

Canada has waived the visa requirements. The Criminal Intelligence Service of Canada stated in a 1998 annual report that

many illegal aliens use Canada as a transit point on their way to

the United States. In many cases, their entry is facilitated by the

fact that they do not need a visa to enter Canada.

Aliens attempting illegal entry into the United States from Canada have two basic choices when crossing our Border. They can either try to fraudulently entry through a port of entry or attempt

to enter illegally between the ports of entry. The alien who attempts illegal entry by fraud or deceit at a port of entry will be

interviewed by a U.S. immigration inspector or a U.S. Customs inspector. If caught, they can be held in the United States on criminal charges or refused entry and sent back to Canada. If they are

sent back to Canada, they face possible removal to their country by

Canadian authorities.

The other, less-risky option available to the alien is to cross nearly the 4,000 miles of sparsely-protected U.S.-Canadian Border between the ports of entry. An alien risks little chance of apprehension by one of the 334 Patrol Agents who patrol the Border with

Canada. In the Detroit Sector, when agents arrest aliens entering

illegally, they transport them back to their station and begin processing the alien for an immigration hearing. During the processing,

it is the agents who decide which, if any, criminal checks they will

run on the aliens. The INS has no policy mandating that any

records check be completed on aliens who are arrested.

Even if an agent decides to run such checks, the accuracy there

is greatly compromised by the fact that it is difficult to positively

identify the aliens because they rarely carry a passport or other

form of identification. Thus, agents must rely on the aliens who

have consciously chosen to break our immigration laws to provide

honest information about themselves. In many cases, it is impossible to verify such information, as there is no biometric record

from any previous encounters. Prior to September 11, Border Patrol agents very seldom received terrorist lookout lists. In one case

several years ago, I assisted the U.S. Coast Guard on the arrest of

six Syrian nationals who attempted entry illegally into Detroit.

Only at that point did I learn they, along with 14 others, were on

31

a terrorist lookout list. The Coast Guard had the list, but the Border Patrol never did.

As the processing continues, the agents have very little verified

information in hand, serve the alien a form delineating the sections

of the immigration law they are alleged to have violated, a box,

marked ‘‘own recognizance’’ is usually checked, and the aliens are

allowed to leave into our communities. Very seldom does the alien

even provide a U.S. address or phone number before they vanish

into our communities. We ask them to send the INS their address

when they take up residence; of course, they rarely do.

Unfortunately, the practice of catching and releasing extends to

criminal aliens at times. In one recent case, a Detroit Sector Border

Patrol Agent tracked down and arrested an illegal alien who had

been convicted of drug trafficking at least five times. When arrested, he had identifications and drivers licenses from seven different States. The agent naively thought the alien would be held

without bond for his immigration hearing, as provided by law. The

agent was wrong. The illegal alien felon was ordered released by

local Border Patrol management over the strongest protest of the

agent.

In 1996, Blaine, Washington Border Patrol Agents arrested terrorist Abu Mezer, not once, but three times entering the United

States illegally. Even after his third arrest, Mezer was released.

Several months later, Mezer was shot by New York City police, just

hours before his planned attack on the New York subway system.

Aliens and smugglers are well-aware of the practice of catch-andrelease. This is demonstrated by one particular case at the freight

train tunnel connecting Detroit, Michigan with Windsor, Ontario,

Canada. The aliens, entering illegally, walked through the train

tunnel from Canada and near the exit on the U.S. side. The agents

illuminated them with their flashlights and identified themselves

as Border Patrol agents. Instead of turning and running, the aliens

simply continued to the exit and surrendered to the waiting agents.

Clearly, there was little fear by the aliens of being held and deported, and, sure enough, they were right. The aliens were processed and released on their own recognizance within a few hours.

In some instances, aliens are arrested by Border Patrol agents

and the determination is made to hold them pending the posting

of a cash bond. The aliens are turned over to the INS Detention

and Deportation Section. Frequently, though, the Deportation Section will rescind the bonds and release the aliens on their recognizance. This dangerous practice continues today. When illegal

aliens are released, we send a disturbing message. The aliens

quickly pass along the word about how easy it is to enter this country illegally and remain here. This practice is devastating to a

sound Border Enforcement Strategy.

It has also negatively affected employee morale, leaving agents

with little sense of accomplishment or job satisfaction. Rather than

recognize and address any shortcomings, our local managers’ response has been to threaten those who speak out. As a result of

speaking to the press recently in my capacity as a union official,

they have proposed to demote me for 1 year and suspend me without pay for 90 days. On a broader scale, some high-level Border Patrol managers support proposals to remove the Border Patrol from

32

1The prepared statement of Mr. Olson appears in the Appendix on page 65.

the INS in the hopes that the union will be dismantled as result

of such reorganization.

It is my hope the new INS commissioner will act quickly to redirect the energies of some of his subordinates in a more positive direction. I am encouraged by his support of the rank-and-file employees on such issues as pay structure of Border Patrol agents, in

the hope that this will translate into a willingness to work with the

union on other issues of mutual concern.

I am proud to be a member of the U.S. Border Patrol. As a member and officer of the union, I am constrained to voice my belief

that local INS managers have not allowed us to protect this great

Nation’s sovereignty to the best of our ability. In fact, on September 11 and the following days, local Border Patrol managers

emphasized that it was, ‘‘business as usual,’’ despite the fact that

acts of terrorism had been perpetrated against our country.

Without detention and removal, there is no deterrent to stem the

flow of aliens, from whom seek to destroy the freedoms of the way

of life that we cherish. I therefore urge the Members of this Subcommittee to aid us in performing our jobs by providing us with the

resources and the direction to fully enforce our Nation’s immigration laws.

Mr. Chairman and other Members of the Subcommittee, I thank

you again for this opportunity to testify, and I will be pleased to

answer any questions you might have.

Senator LEVIN. Thank you, Mr. Hall. Mr. Olson.

TESTIMONY OF KEITH M. OLSON,1 PRESIDENT, LOCAL 2913,

NATIONAL BORDER PATROL COUNCIL, AND SENIOR BORDER PATROL AGENT, U.S. BORDER PATROL, BELLINGHAM,

WASHINGTON

Mr. OLSON. Chairman Levin, honorable Members of the Subcommittee, my name is Keith Olson. I thank you for providing me

this opportunity to testify about my knowledge of Border Patrol operations. I have been a Border Patrol agent for nearly 14 years and

deeply love my job in the organization. The Border Patrol was once

a very proud, elite law-enforcement organization whose morale was

very high. This changed a few years ago, and morale has been

steadily deteriorating since that time. My fellow agents and I want

to reverse that trend and restore the efficiency and pride of the

U.S. Border Patrol.

Sadly, there are some managers in the Immigration and Naturalization Service and the Border Patrol who have been less than

honest with our elected representatives and the public. Following

the terrorist attacks of September 11, 2001, when asked if our

Northern Border was secure, they tried to assure everyone that everything was under control. At that time there were only 324 Border Patrol agents on the Northern Border. To this day, that number has not increased. Not one additional Border Patrol agent has

been assigned to the Northern Border since that fateful day. Instead, the agents have been working 12 hours a day, averaging 60

to 90 hours of work each week. All 100 of the Border Patrol agents

temporarily assigned to the Northern Border under Operation

33

Northern Shield are assisting with security at the ports of entry,

where immigration inspectors and Customs inspectors work. None

of them are assisting us in patrolling the 4,000 miles of Border between those ports of entry.

There are approximately 9,000 Border Patrol agents assigned to

patrol the Southwest Border. That translates to one agent for every

1,300 feet on the Southern Border. In sharp contrast, there is only

one agent for every 13 miles on the Northern Border. If you were

a terrorist, where would you like to take your chances? The Border

Patrol agents on the Northern Border appreciate the manpower increases mandated by the USA Patriot Act of 2001, and urge Congress to fund those vital positions and ensure that experienced

agents are allowed to transfer there instead of utilizing new hires.

It would require several years to properly train new hires, and help

is desperately needed now. Moreover, depriving experienced agents

of the opportunity to fill these desirable positions would further demoralize the workforce and increase attrition beyond its alarmingly

high current levels.

Accountability needs to be restored to the INS and the Border

Patrol. Committee oversight and investigations such as today’s

hearing are an important part of that process. Most of the illegal

aliens from countries other than Mexico that are apprehended on

the Northern Border are released on personal recognizance pending

their deportation hearings before immigration judges. In other

words, they merely sign a piece of paper promising to appear when

given a court date. They provide an unverified address and then

walk out the door. Thousands never return for their court dates,

which usually results in an order of deportation being issued in

absentia.

There are many thousands of unserved warrants of deportation

languishing in INS file rooms across the country. Unfortunately,

very little time is devoted to tracking down these law breakers. Occasionally, the Border Patrol intercepts aliens who have an outstanding warrant during its daily operations, but that is very rare.

The INS investigations program has primary jurisdiction over

these matters, but it is not a priority. In fact, in Washington State,

where I have worked since 1994, I have never seen or even heard

of an INS investigator attempting to seek out and arrest the subjects of these warrants. This, too, must change. The INS needs to

be directed to focus more of its resources on this important task.

Interior enforcement has been neglected for too long and must

become a priority for the INS. Because of lack of funding for removals, the Border Patrol also routinely fails to remove illegal aliens

who are apprehended on the Northern Border. These aliens are

given a Form I–210, instructing them to leave the United States

within 30 days, and they are released. Again, there are no controls

to verify if the alien ever actually leaves the United States. It is

not uncommon to rearrest aliens who have never bothered to leave

the United States as instructed. Hopefully, that time there is available jail space. If not, the process is repeated all over again. In my

experience, criminal record checks are performed for most illegal

aliens apprehended in my sector. This is not uniform throughout

the 21 Border Patrol sectors, however. Most of the persons arrested

for being in the United States illegally are never issued an alien

34

registration number. Millions of illegal aliens are merely processed

on the INS alien arrest processing system, known as ENFORCE.

All arrested aliens are supposed to be processed in this database.

After the arrested alien is processed in ENFORCE, the alien’s

right and left index fingers are entered into another database system, called IDENT. In theory, this biometric database tracks every

immigration arrest of an individual. In practice, however, it is

flawed. It is not always online, making it impossible to input data

for all arrested aliens. It also sometimes yields unreliable arrests.

I have personally seen it issue two different record numbers for the

same person when, in theory, there should only be one arrest history number based on the same set of two fingerprints. This can

happen for a variety of reasons, such as dirty fingerprints, severely

scraped or cut or damaged fingerprints from manual labor, which

alters the skin patterns.

I do not claim to be a fingerprint expert, but since the IDENT

system is only based on two fingerprints, it appears to me that this

small sampling contributes to the errors. It is important to note

that the INS IDENT system does not interface with the FBI’s fingerprint system, and vice versa. The FBI fingerprint system is

based on all 10 fingerprints, not just two. Perhaps the biggest flaw

in the IDENT system is limited amount of storage. Once it reaches

a maximum memory, it deletes the oldest records in order to make

room for newer entries. Obviously, all fingerprint data should be

retained indefinitely.

If an agent suspects that an alien has a criminal record, the

agent must take fingerprints the old-fashioned way, with cards and

ink, and enlarge them to 200 percent on a photocopier, and then

fax those copies to the FBI for analysis. Even with such an archaic

method, we frequently get a match from the FBI. Taking advantage of the available technology would undoubtedly allow us to submit more fingerprints and increase the number of matches. The

FBI fingerprint check is not a mandatory, required record check. It

is performed solely at the discretion of the arresting agent.

The INS has a number of other record check subsystems, most

of which do not interface with each other, much less with those of

other law-enforcement agencies. There is a clear need for much

more coordination and information sharing. Moreover, information

on many non-immigrant visitors is not entered into any databases,

diminishing their utility. Further complicating the difficult task of

determining an arrested alien’s criminal history is the fact that it

is almost impossible to obtain criminal checks from other countries.

The only foreign criminal checks that I have ever received were

from Canada.

The low amount of bonds placed on criminal aliens is another

major problem in the current system. For example, aliens who are

arrested by the Border Patrol and determined to be a public safety

or flight risk are generally given a bond amount of over $25,000.

That figure is entered into the appropriate space on Form I–286,

bond determination form, and the subject is turned over to the INS

district detention facility. While at the detention facility, an INS

deportation officer can redetermine the subject bond down to a figure as low as $500, or even a personal recognizance signature. For

35

1The prepared statement of Mr. Davis appears in the Appendix on page 69.

the sake of the safety of our communities, this should not be allowed to happen.

Despite its flaws, the U.S. Border Patrol retains a fair degree of

respect among Federal law-enforcement agencies. It would be

greatly improved if we were free to make law-enforcement decisions based on the law instead of the political agenda of bureaucrats. These concerns are shared by labor and management alike.

You will hear the same concerns voiced by my former Deputy Chief

Patrol Agent, who is also here to testify today. I sincerely believe

that these problems are not insurmountable and, in fact, I am

heartened by the willingness of the new INS commissioner to take

a fresh look at some of the problems in the organization. For example, he has recognized that the low pay structure of Border Patrol

agent positions contributes greatly to the attrition problem, and is

actively seeking funding for an upgrade. I am also hopeful that we

can work with him to correct some of the problems that I have

identified today.

We also need the assistance of Congress to obtain the resources

and provide the mandate necessary for us to do our job. The brave

men and women of the U.S. Border Patrol stand ready to secure

our Nation’s Borders and interior and enforce the immigration laws

of the United States. As one of their union representatives, I stand

ready to provide you with truthful answers to your questions.

Senator LEVIN. Mr. Olson, thank you very much. Mr. Davis.

TESTIMONY OF EUGENE R. DAVIS,1 RETIRED DEPUTY CHIEF

PATROL AGENT, BLAINE SECTOR, U.S. BORDER PATROL,

BLAINE, WASHINGTON

Mr. DAVIS. Thank you, sir. Mr. Chairman and Members of the

Subcommittee, my name is Eugene R. Davis. On January 1, 2000,

I retired after spending 29 years with the Immigration and Naturalization Service. During my tenure with INS, I served as a Border Patrol agent, as an immigration inspector, as a special agent,

as a Patrol Agent-in-charge, as an Assistant Chief Patrol Agent,

and as the Deputy Chief of the Border Patrol at Blaine, Washington. During my years of service, I spent much time in the field,

leading enforcement operations. Those operations included working

jointly with special agents in the Seattle, Washington, Portland,

Oregon, and Anchorage, Alaska district offices.

Because of the expertise and the knowledge I have gained over

the many years of experience, I have testified before the U.S.

House on two other occasions. I am honored to be here today and

wish to express my sincere appreciation for giving me the privilege

of testifying. I enjoyed very much my years of service. I can truly

say that most of the field agents that I worked with in the Border

Patrol, immigration inspections, and investigations were and continue to be dedicated government employees who simply want to do

their jobs in the manner that they have taken an oath to do.

Since the horrible events that took place on September 11, 2001,

I have encountered numerous INS employees who are having a

very difficult time dealing with what has happened. The emotions

of these INS employees mirror those of all other American citizens,

36

but they go much deeper because of the sense of guilt, anger, and

betrayal that they feel towards upper INS management. These

dedicated INS employees feel that if they had been given the proper tools to do the job, and if they had been allowed to enforce the

immigration laws in a manner that should have been done, that

the events of September 11 may not have taken place. I also believe this to be the cause.

It is my opinion that most of the blame as to how the terrorists

were able to come to our shores to perpetrator this act was because

of the total breakdown of immigration policies and procedures in

this country. If a building had collapsed because of faulty construction and almost 6,000 innocent people had lost their lives, accountability would be demanded. It is my sincere hope that the U.S.

Congress will carefully examine the collapse of meaningful enforcement efforts within INS and demand accountability.

As various subcommittees go about their business of putting the

INS under strict examination, I hope they will have the wisdom to

reach out to the retired District Directors and the Chief Patrol

Agents who are willing to come forth and testify. They are the real

experts as to what has gone wrong in immigration enforcement.

There are entire legions of retirees that are willing to come forward. I believe there are also huge numbers of INS employees willing to come forward if the gag order they are under would be lifted.

If accountability turns into culpability, I hope that Congress will

see that those that were found derelict in their duties could be removed and those found to be criminally negligent or to have performed unlawful acts could be charged and prosecuted. Per the request of the Subcommittee, there are several things I would like to

address that were concerns during my service with the Border Patrol. First, alien processing procedures and problems. During the

last 10 years that I served in the Blaine sector, we encountered a

great deal of difficulty in our efforts to effectively incarcerate and

remove undocumented aliens. This included both the illegal aliens

we encountered while doing interior enforcement operations and

those we arrested coming across the International Border from

Canada.

If our agents could establish that the apprehended alien had a

serious criminal record, we could usually locate a facility to hold

him. It was extremely difficult to locate any criminal record on

third-country aliens entering the United States from Canada. Most

had no identification at all, and we had nothing to go on at all but

their word, which was usually highly suspect. Due to the fact that

they had no identification and they were in the United States, it

was impossible to remove them back to Canada. Lacking evidence

of a criminal record and because of a severe shortage of funds and

jail space, most of these aliens were given a notice to appear or a

notice to show cause, and they were released on their own recognizance.

Before being released, the processing agent would ask the alien

what his destination was and inform him he had a maximum of 30

days to report to the nearest INS office for a hearing. A file was

then created and mailed to the INS district office, to where the

alien said he was going. Over the years that this policy was in effect, there were literally hundreds of agents from the Blaine Sector,

37

but I think there were also literally thousands throughout the

country that were released in this manner. Many of the undocumented aliens who are encountered—whom we encountered, who

were already residing in the United States were given I–210 letters

and told to depart the United States.

During the last several years I worked, we no longer had a problem dealing with undocumented aliens in the interior because we

were no longer allowed to work in any interior enforcement operations. A check with any INS district office in the United States

will reveal boxes and boxes of files belonging to those aliens who

were told to report to the nearest office at their destination and

who failed to appear. I would estimate that there has been no effort

to locate 95 percent of those aliens. They have simply been allowed

to disappear into the United States. No one knows whether a number of these missing persons are trained terrorists who will eventually emerge to perpetuate more acts of terrorism against innocent

U.S. citizens.

It is not that the district offices have been derelict in trying to

locate these people. Each of the INS district offices has one common major problem, a lack of manpower resources. Most offices are

able to operate only on a limited, reactive basis. They cannot be

proactive. It is common knowledge, for all intents and purposes,

that there is no interior enforcement of immigration laws. In most

cases, if you make it past the Border and are undetected or if you

receive a temporary pass to make it to the interior, you are home

free. The district offices do not have adequate numbers of enforcement staff to do what they have been tasked to do.

The situation in Seattle, Washington and Portland, Oregon districts have been placed under even greater burden over the last

several years, when the Border Patrol was restricted from doing

any interior enforcement operations that they had traditionally

worked. This has created no-enforcement zones. It has also provided the delusions in the Blaine Sector that apprehensions have

dropped for a positive reason. Final conclusions: In closing, I would

like to enter into my own conclusions regarding the immigration

mess that we as a country find ourselves in. For the past two decades, there has been a flood of uncontrolled illegal immigration

that has taken place in the United States. This illegal immigration

has occurred by people slipping across our Borders and coming

here as visitors or students who have not gone home.

There has been a bipartisan neglect to not really address this

problem. The common denominator in most of the instances which

causes this flood is jobs. People slip across the Border 1 day, buy

a fraudulent Social Security card on the second day, and by the

third day they are gainfully employed. It is true that many of these

people are doing jobs that many American citizens will not do, but

it is also true that you cannot wink and look the other way as an

undocumented migrant worker crosses the Border and, at the same

time, screen out terrorists. Over the years, there has been no one

more outspoken on the issue of putting additional resources on the

Norther Border than I.

I testified before the House Judiciary Committee on this very

subject. However, I would be the first to say that it will not solve

the immigration problem by just putting additional agencies and

38

technologies on the Border. This is the equivalent of placing additional crewman and a global positioning system on the Titanic. The

INS policy in this country is a flooded, sinking ship. In order for

illegal immigration to come to a halt, Congress will have to shut

off the job magnet. This will mean that Members of Congress will

have to stand up to the pressure of special-interest groups that are

dependent upon illegal aliens that slip across the Border.

As I made reference in my opening remarks, I believe that it is

imperative that Congress address the issue of mismanagement at

headquarters division of INS. If a Border Patrol agent under my

supervision was negligent and lost a $200 pair of binoculars, he

was held accountable. He was disciplined and forced to make restitution. If a headquarters manager allows millions of dollars to be

squandered on a useless computer system that will not work, nothing is done to him. I am especially perplexed as I read reports that

have come from both the present and the past Inspector General

for the Department of Justice. Over the last decade, they have

written and published many reports outlining mismanagement

within INS, but nothing seems to change.

Please take time and effort to correct these problems and restore

effective immigration policies. Again, thank you for the opportunity

of being here, and I would welcome any questions that the Subcommittee may have.

Senator LEVIN. Thank you, Mr. Davis. Let me ask each of you

to give us just an educated guess; what percentage of the people

who are arrested attempting to cross the Border who are not returned voluntarily are released on their own recognizance, as compared to the percentage that is detained?

Mr. HALL. I will start out there. I would say that it is a very high

number.

Senator LEVIN. That are released on their own recognizance?

Mr. HALL. Own recognizance. I heard you mention the percentage of 90 percent. I would say that is a fair number. The other

thing we have to realize here is where the numbers game starts

playing tricks on us, is where we have detained, and they may be

detained without bond or on a high bond. Then they are turned

over to the Deportation Section, and it occurred last week, as it is

probably occurring this week, as well. The Deportation Section

then rescinds the bond and releases them on their own recognizance (OR). Many times we call up the Deportation Section, saying we have two in custody, can we bring them down, and they will

advise us ‘‘no,’’ and they will go ahead and just cut them if they

do not have the space.

Senator LEVIN. Say that again. Just cut them?

Mr. HALL. Cut them loose; in other words, release them on their

own recognizance.

Senator LEVIN. Because there is no space?

Mr. HALL. No space.

Senator LEVIN. Is that without a criminal background check?

Mr. HALL. Sometimes that will play into effect, if they will hold

them, but not normally, that usually does not make a difference.

They will go ahead and release the criminals, as well.

Senator LEVIN. Just because there is no space.

39

Mr. HALL. There is no space, no money. So that number actually

can be higher than what it looks, because some who are initially

issued the bond or being held on a bond, can have the bond later

rescinded within a couple of days, and then they are released OR,

as well, own recognizance.

Senator LEVIN. Mr. Olson, do you want to comment?

Mr. OLSON. I would concur with Mr. Hall, probably the same figure in our area, Seattle, Blaine Sector. In our area, we have what

we affectionately call the Three-card Monty. We put a bond on

them and send them down to district, and district releases them,

lowers the bond, and it will kick them out the back door, where we

think the same way as he does, that they are in custody, when they

are not. I have personally seen convicted, aggravated felons are the

worst ones that we have, that have known criminal records, still

kicked out. They are statutorily ineligible for a bond. Just for lack

of jail space, they are released.

Senator LEVIN. Let’s make clear what you mean by kicked out.

You do not mean kicked out of the country; you mean kicked into

the country.

Mr. OLSON. Yes, sir, released right back out onto the streets.

Senator LEVIN. Mr. Davis, do you want to comment?

Mr. DAVIS. I cannot comment on the last 2 years, because I have

been retired for almost 2 years. But I would say that over the last

decade that I worked, many, many people were released, and one

of the things, sir, that Mr. Hall made reference to, the case with

Abu Mezer; this was the individual that the New York City police

shot in Brooklyn as he was getting ready to be a suicide bomber.

We arrested this individual twice in 1996. When we ran record

checks in Canada, it said there was no record. Subsequently, we

learned there was two records there. But the thing that I found so

troubling about this was when we sent him to Seattle, put a

$25,000 bond on him the third time we got him—we got him two

times within a week—we did not see him for 6 months. Six months

later, we have got him in Bellingham putting two other people on

a bus. But a $25,000 bond, sent him to Seattle; the bond was lowered to $5,000—but the thing that really blows my mind on this,

that it was another illegal alien that went into the INS office and

bonded this individual out. His status was not even checked.

Senator LEVIN. Now, did this man have a record?

Mr. DAVIS. Mr. Mezer?

Senator LEVIN. Yes.

Mr. DAVIS. Mr. Mezer had a record in Canada, subsequently we

found, later on. The first two times we got him, when we ran

checks in Canada, it came back negative. Because of a lack of jail

space, we kicked him back to Canada; the Canadians would take

him back. The third time we got him, we found that he had been

convicted of possession of a stolen credit card. I think he had also

been arrested for assault.

Senator LEVIN. In Canada.

Mr. DAVIS. In Canada.

Senator LEVIN. That was before you set that bond?

Mr. DAVIS. Yes. The third time we got him, he was putting two

other people on a bus. At that time, sir, our guess was that he was

involved in alien smuggling, and I think that he probably was inVerDate 11-MAY-2000 11:01 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 77437.TXT SAFFAIRS PsN: SAFFAIRS
40

volved in alien smuggling, but unfortunately some of the aliens he

was smuggling, I think, very well may have been also terrorists.

But when we arrested him the third time, send him down, he was

released 6 months later. He was shot by the New York City PD as

he was getting ready—he actually, I understand, as they kicked in

the door, actually went for the explosives, and because of that he

was shot.

Senator LEVIN. But the third time that he entered, you knew

that he had a Canadian record, and that is why a high bond was

set?

Mr. DAVIS. Well, yes. But we were very suspicious because of the

fact we got him 2 weeks in a row, but we were also concerned because there was a 6-month period there that we did not see him

at all.

Senator LEVIN. Now, has the percentage of people who are released on their own recognizance changed since September 11? Can

you tell yet, Mr. Hall?

Mr. HALL. Just within the past few days, since there have been

rumblings of this Subcommittee starting an investigation, there

has been detention, but prior to last week, no, it had not changed.

Senator LEVIN. Do you know, Mr. Olson? Was there any change

since September 11 in your sector?

Mr. OLSON. Actually, it has gotten worse. All of our jail contracts

that we have with the local authorities have expired and we have

absolutely no jail space to hold these people. We are having to try

and shuffle them around, and most are being released because we

have no jail contracts. They expired.

Senator LEVIN. The INS, you have testified, the detention office

can override the agent’s decision, is that correct, on whether someone should be released, the amount of bond and so forth?

Mr. DAVIS. That is correct.

Senator LEVIN. Does that happen often?

Mr. OLSON. I would say probably with every case. I have yet to

see one, a bond that we put on them, that bond be paid and maintained. It is always bargained down.

Senator LEVIN. At the INS—— Mr. OLSON. At the INS—— Senator LEVIN [continuing]. Detention facility?

Mr. OLSON [continuing]. Facility, right.

Senator LEVIN. Have they ever overridden your judgment in the

opposite direction, in favor of detention instead of in favor of release? Does that happen?

Mr. OLSON. Not to my knowledge.

Senator LEVIN. Do you know, Mr. Hall?

Mr. HALL. In 17 years, I have seen it happen once.

Senator LEVIN. Do you know, Mr. Davis, if it is uncommon?

Mr. DAVIS. I have never seen it happen.

Senator LEVIN. Now, on the percentage of people who are released on their own recognizance, who do not show up for a hearing, I am not sure the two of you would be in a good position to

know that, if you are, just let me know. But I think Mr. Davis may

or may not be, from your perspective. Do you have a sense as to

what percentage of people who are released on their own recognizance who do not show up for their hearing?

41

Mr. DAVIS. Back when I was working, it was very low. It was so

ridiculous—— Senator LEVIN. Who do show up.

Mr. DAVIS. Very low, were very low, the ones that do show up;

very high, the ones that do not show up.

Senator LEVIN. Do you have any sense of that, because you, obviously, are doing the arresting? You are not doing the following of

who shows up and who does not, but do you have a sense of whether most people released on their own recognizance show up at the

hearing that they are supposed to show up at? Do you have any

sense of that?

Mr. OLSON. A small percentage show up, and you can tell by

when they do not show up, in most cases they will issue a warrant

of deportation in absentia, and there are literally thousands of

those out there, but they are not in a database anywhere, absolutely none, like a records check.

Senator LEVIN. Those warrants for people who do not show up

that are issued are not even put into a database?

Mr. OLSON. No. Like earlier they were testifying that the NCIC

warrant system—we do not have a warrant system.

Senator LEVIN. Do you have anything on that, Mr. Hall, to add

to what has been said already?

Mr. HALL. I think that is fair.

Senator LEVIN. Now, for those who do not show up, is there any

effort made to arrest them?

Mr. HALL. We used to in Detroit, seek out some, especially cases

that an officer had initiated.

Senator LEVIN. How long ago was that?

Mr. HALL. A year, 2 years ago, possibly; then the new policy

came out of no interior enforcement, so we were not allowed to seek

any individuals, no matter what the seriousness of their crimes, be

there a criminal record or whatever. If they had a warrant of deportation at that point, we were told that we could not go out and

seek them out.

Senator LEVIN. All right, and that is as of a year or two ago.

Were you operating under the same policy, Mr. Olson, or does that

differ from sector to sector?

Mr. OLSON. No, we have pretty much the same policy. We would

be referred stacks of these deportation warrants, to go out and seek

them.

Senator LEVIN. Up to a certain year?

Mr. OLSON. That stopped probably about 2 years ago, when they

started this no interior enforcement so we can artificially decrease

the apprehension rate.

Senator LEVIN. So we can artificially increase the apprehension—

how does that increase the apprehension rate?

Mr. OLSON. Decrease it, sir.

Senator LEVIN. Decrease it, OK.

Mr. DAVIS. I would have to agree with Mr. Olson. I spent 20

years in the Blaine Sector as an agent, working my way up the

ranks, and to me the last 2 years probably were one of the reasons,

sir, that I really decided to retire. When we came up with this policy that an individual in Bellingham, Washington, might get information on the phone, but he has got 15 people working a mile from

42

the Border Patrol station and he gets information, he cannot work

that because that is interior enforcement, that is criminal.

Senator LEVIN. Got you. OK. Now, on the issue of whether someone is detained or released, one of the grounds statutorily for detention is if they are a threat to the community, and then that presumably requires there be some kind of a criminal record check at

that point. But apparently criminal record checks are not always

made; is that correct? Mr. Hall.

Mr. HALL. It is not a mandate. It is left to the agent’s discretion,

but it is a mandate that we use the ENFORCE and the IDENT

system. If these other systems were interfaced with IDENT, it

would be simple. Everything else is in place if they were interfaced,

but now they are asking us—I mean, with all these different systems, you would need the workweek to finish doing all the checks

on everybody. So the systems desperately need to be interfaced.

Some of these systems I had not even heard before this meeting.

Senator LEVIN. Before what?

Mr. HALL. Before this Subcommittee meeting, some of the systems I had not even heard of.

Senator LEVIN. OK. Mr. Olson.

Mr. OLSON. Like he says, IBIS, I have never heard of IBIS. I do

not know where we are going with that. I have been in 14 years.

It is the first time I have heard it today.

Senator LEVIN. People, though, are released if there is no space,

I think you testified—— Mr. OLSON. That is correct.

Senator LEVIN [continuing]. Without a criminal background

check.

Mr. OLSON. We are releasing people without a criminal background check. We are also releasing people with criminal background checks.

Senator LEVIN. Where there is a crime even shown in their

check; is that correct?

Mr. OLSON. Yes, sir.

Senator LEVIN. There have been times when the crime is even

identified and you still release them, or they are released?

Mr. OLSON. That is correct, and we frequently run into reoffenders, who are out on bond from INS. They are rearrested by

the police department for other crimes and then sometimes convicted of them, sometimes they are out on bond again from that,

turned back over to us, and we do what we call a bond redetermination, where we try and—say they are brought up on a $5,000

bond—we take them and try to increase that bond to $25,000, send

them down to district INS, and they will kick them right back out

on the street on the same exact bond that they had. It is an exercise in futility.

Senator LEVIN. Mr. Davis, do you have anything to add?

Mr. DAVIS. The only thing I would like to add is both of these

agents talking about the horrendous problem as far as record systems, and this is one of the things I made reference to in my testimony, sir, is the fact that INS over the last 10 years, I would venture it is probably—I know it is in the hundreds and hundreds of

millions of dollars, if not in the billions, that they have put into

these record systems, for record systems you cannot interface,

43

record systems you cannot access, no accountability. They will

spend millions and millions and millions of dollars on a system

that does not work, and there seems to be absolutely no accountability, and I just think that is absolutely inexcusable.

I think that any agent in the field, I do not care where he is,

there should be one system. He could run it one time, and it would

run each of those systems. But it is criminal.

Senator LEVIN. I want to go back to a question which I had asked

our first panel, that relative to an estimate as to the number of

people who are arrested actually as they are entering. You also arrest people on occasion who have already entered.

Mr. HALL. Correct.

Senator LEVIN. What is your experience on that, just in the Detroit Sector? Of the people the Border Patrol arrests, what percentage—give us an estimate, a range, are arrested as they are entering the country?

Mr. HALL. I think prior to September 11 it was somewhere in the

neighborhood of about 30 percent, a rough figure, and I believe now

it is upwards of 50 percent.

Senator LEVIN. That are actually arrested——

Mr. HALL. As they are coming in the country.

Senator LEVIN. The figure that I think he said was about 10 percent. Did you hear that? Do you know where that figure—does that

seem very low to you?

Mr. HALL. It is a pretty lowball number, I would say.

Senator LEVIN. I think you saw a chart, but maybe not. Maybe

we will put up that chart where there was no local address that

was put in, where people did not even provide an address, but who

were released. Have you ever seen that?

Mr. HALL. He mentioned that he was shocked by that. That is

absolute common practice for years in Detroit.

Senator LEVIN. That there is no address?

Mr. HALL. I would say over 90 percent of the people we arrest

at entry, coming into the country illegally, they know that if they

have a travel document there is a greater likelihood they will be

held because we know where they are from. The Deportation Section does not have to secure a travel document for them, so there

is a greater chance of removal to their home country. So, before entering the United States, they will get rid of everything that has

any identification for them, so when they come in, we can run them

through NCIC–3, we can run them through CIS, all the systems,

but we are relying on this individual, who has already broken the

law, to tell us their true name, tell us their true date of birth, and

we do not even know what country they are from. We are relying

on them to tell us what country they are from.

Senator LEVIN. In terms of giving you an address where they can

be notified of the removal hearing, is it unusual that they will not

give you an address? They will just say there is no address?

Mr. HALL. They will say they do not know anybody in the United

States. They have no address. They do not know where they are

going, ‘‘I know nothing.’’ Senator LEVIN. A lot of those folks are just simply released on

their own recognizance?

Mr. HALL. I would say almost exclusively all of them.

44

Senator LEVIN. A lot of the people arrested who have no documents, no address that identifies where they are going, are still released on their own recognizance?

Mr. HALL. Yes.

Senator LEVIN. Is that true in Washington, too, or is that a Detroit incredibility?

Mr. OLSON. No, this is the same thing. It was also the same

thing when I worked on the Southern Border. We frequently released them without addresses.

Senator LEVIN. Even those who were not voluntarily returned? I

guess on the Southern Border, you have the vast majority who are

just voluntarily returned; is that correct?

Mr. OLSON. That is correct.

Senator LEVIN. So the relatively small percentage that did not

voluntarily return, that were then entitled to a hearing, you are

saying you had the same situation, where there was no address in

the United States but you still give a notice-to-appear document

and tell them that they will be notified when and where to appear

for the removal hearing? Is that typical in the South, too?

Mr. OLSON. Yes, sir. They know that anything you give them,

you are going to use to hunt them down later, or so they suspect.

Senator LEVIN. Anything that they give you.

Mr. OLSON. Any information, such as addresses, phone numbers,

relatives, so that is why they will not give it—— Senator LEVIN. That they give you.

Mr. OLSON. That is correct.

Senator LEVIN. So then where do you send the hearing notice?

In this kind of case, where is the hearing notice sent?

Mr. HALL. We do not send one. We provide them with another

form, that is EOIR–33 form. We give that form to the alien as they

are walking out the door, and where it says alien registration number on the right side of that form, I will fill that number in and

then ask them, when they get an address in the United States, to

please mail that to INS so we know where to look for them or

where to send them their address. Normally, that form does not

make it out of our parking lot. They normally throw that on the

ground as they are walking out.

Senator LEVIN. It is a common thing to issue a form like that?

Mr. HALL. Everyone that we release on their own recognizance

that fails to provide an address, we give them that form in hopes

that they will return it to INS with their address once they take

up residence in the United States.

Senator LEVIN. Do we have any idea what percentage of those

forms are returned? Do you have any idea? Does anyone know?

Mr. DAVIS. I have no idea.

Mr. HALL. It is probably less than the people that show up for

their hearings, I imagine, or somewhere thereabouts, about the

same number.

Senator LEVIN. What does the term B&B stand for?

Mr. HALL. Bag and baggage.

Senator LEVIN. What does that mean?

Mr. HALL. That means they have an order of deport and they are

ready to go, get their bag and baggage and ship them.

Senator LEVIN. Is that the warrant that you were referring to?

45

Mr. HALL. That would be a warrant of deportation.

Senator LEVIN. Those are the ones that you have got boxes of,

just boxes of those documents in your office?

Mr. DAVIS. Yes, sir—not in our office; the district INS maintains

all records.

Mr. DAVIS. I might say I verified that just last week at a conference. I was talking to an individual from where the district office

is, and he said oh, yes, they have got boxes of those things, but

again there is nobody to go out and look for them.

Senator LEVIN. Prior to September 11, the Border Patrol was

staffing I think only two of three shifts, at least in some sectors of

the Northern Border; is that correct?

Mr. HALL. In most of our stations in Detroit, we staff only one

of three shifts.

Senator LEVIN. Now, still?

Mr. HALL. Now they are staffing two 12-hour shifts.

Senator LEVIN. But before September 11, there was only one of

the three shifts?

Mr. HALL. Some of the stations—we have five stations, at least

two, if not three, of the stations only worked one shift.

Senator LEVIN. One shift. Mr. Olson, what was the situation?

Mr. OLSON. We had a day shift and an afternoon swing shift. We

did not have an evening graveyard shift. We are currently working

the people that we have now 12-hour shifts in order to cover this

additional shift that was uncovered, but without any additional

people.

Senator LEVIN. But that was before September 11, the so-called

graveyard shift was not covered.

Mr. OLSON. Wide-open.

Senator LEVIN. That would be from midnight to 8 o’clock in the

morning, roughly?

Mr. OLSON. Yes, sir.

Senator LEVIN. We have heard a little bit his morning and before

this morning about a watch list, which is supposed to be maintained for possible terrorists. Is there a watch list that you access?

Mr. HALL. Yes, we receive it in Detroit over our internal mail,

the E-mail. We started receiving that shortly after September 11.

Senator LEVIN. Before September 11, no watch list, and do you

know whose watch list that is? Is that an FBI watch list? Is that

an INS watch list?

Mr. HALL. I think it is an INS departure prevention watch list,

or people we are not supposed to let leave the country.

Senator LEVIN. Let leave the country?

Mr. HALL. That is the one that I have seen. It is a departure prevention list.

Senator LEVIN. OK. Mr. Olson, do you know what that is?

Mr. OLSON. I do not know who authors it. I have seen the list,

there was one and then one revision since September 11. I have

never seen one before that.

Senator LEVIN. Is there currently a requirement that you look at

a watch list?

Mr. OLSON. No, there is absolutely no requirement, but everyone

in my station and my sector that I know of is, of course, very interested in what has happened and doing our best to maintain that

46

if we come into contact with someone who could possibly be on the

list, that their name is compared against the people on the list.

Senator LEVIN. This is names, photographs?

Mr. OLSON. No photographs, just names, last known addresses,

possible birth dates or Social Security numbers.

Senator LEVIN. But, again, you think it is an INS watch list? Is

that your understanding, or you do not know?

Mr. OLSON. I do not know who issued it.

Senator LEVIN. Are you required to look at a watch list with

every person?

Mr. HALL. I do not think there is any requirement, sir, but I believe most of the agents do, when we encounter someone that is a

suspect.

Senator LEVIN. How many people are on this watch list, roughly?

Mr. HALL. It started out, I think, at 100, and I do not know if

it has grown to 200 or 300.

Senator LEVIN. Does that sound about right, Mr. Olson?

Mr. OLSON. At least.

Senator LEVIN. Well, let me close by thanking each of you for

taking the time and having the courage to come and tell us what

is happening at our borders. It is not easy to do what you have

done, and we are proud of you for doing it. The Subcommittee is

going to closely monitor any personnel actions to make sure that

there is no act of retaliation taken against any of you for testifying

before us.

It is utterly amazing to me that for persons who are arrested for

illegally entering this country outside of a port of entry, who are

released on their own recognizance, that there is not a criminal

background check required, that the IBIS system is not required to

be checked, that there is not a requirement of the State Department list, the Class 2 list, as it is called. These are people who cannot get a visa to come to this country, to whom our consuls do not

give visas, and yet that information is not made available to our

Border Patrol agents for people whom they have arrested for illegally entering the country. We do not require an address for people

who are released. For those few who maybe can make out a case

that, even though they have been arrested for illegally entering the

country, that they still ought to be somehow or other released on

their own recognizance, we do not even require an address for

them.

Now, there are a lot of complex, difficult questions in the immigration field. What is the proper level of legal immigration? How

do you deal with the large number of illegal immigrants who are

already here, who have established homes here, who have jobs

here? How do you deal with them? What do we do about temporary

work permits? Should we have a larger system of temporary work

permits? How do you prioritize green cards and visas? There is just

a whole host of complicated questions.

But I do not think the subject that we have looked at this morning is complicated or difficult. What we are looking at this morning

is why in Heaven’s name are we releasing people after they have

been arrested for attempting to enter the country illegally, on their

own recognizance, their own statement that they will show up at

a hearing? Although we do not have the numbers, because the INS

47

does not keep them, somewhere probably around half of those are

people who were actually arrested as they were entering the country.

We had, I think, your testimony, Mr. Hall, today that since September 11 that may be 50 percent, but we are not sure what that

number is, but it could be half of the people. We had a much lower

number by our first panel, which differs from the number you gave

us, but nonetheless a significant number of people arrested as they

are entering the country illegally are released on their recognizance. They are sneaking in. These are the people we are talking

about this morning who are not arrested at a port of entry. We are

talking about people here who are arrested other than at a port of

entry.

It seems to me that that is a totally absurd policy, and that the

only reason that we are following that policy, apparently, is that

there is a lack of places to put these people, there is a lack of detention facilities. We have got to, it seems to me, take steps to

make sure that people who are arrested for illegally entering this

country, if they do not seek asylum are subject to criminal background checks and detained where appropriate. But to just simply

hand somebody whom you have arrested for sneaking into the

country a piece of paper saying ‘‘Let us know what your address

is, will you, so we can notify you of a place to come to a hearing,

so that you can be removed from the country,’’ is not credible. That

is the theater of the absurd to me and it has got to be changed.

Now, we have looked at one segment of this problem this morning. We have not looked at all the other segments. I want to emphasize that. We have looked at one segment. This is what the Border Patrol faces. These are the folks who arrest people other than

at ports of entry, and when our agents arrest people for illegally

entering the country and then see a huge percentage of those folks

who do not return voluntarily, a huge percentage just simply released into this country, that is absolutely almost a useless job at

that point. It is exactly the wrong message we are sending to people. The message that that policy sends to people is if you enter

the country other than at a port of entry and you are arrested, you

are going to be released into this country. That is what the odds

are. You are just going to be released into the country, and you will

just be told, ‘‘Hey, let us know what your address is, would you,

so we can notify you where you can come to a hearing which is

going to lead to your removal.’’ Well, if they were going to do that,

they would not be sneaking into the country to begin with.

So I just do not know how much more dysfunctional a policy can

be than that. That is the bottom line for me, and so we are going

to be asking the INS, the Border Patrol, to report back to this Subcommittee in 30 days on what they are going to do about this particular problem and what steps are going to be taken to solve it,

and that includes a lot of aspects, including all these information

systems which are not made available to our Border Patrol that

give critically-important information about people whom they arrest. This information is in the hands of the State Department or

in the hands of some other agency, but is not available to the Border Patrol agents who are arresting the folks who are attempting

to enter this country illegally.

48

The events of September 11 are so horrendous that the wake-up

call that they have given to us, it seems to me, is so loud that we

can expect the INS and the Congress to respond, and we are going

to do just that. We thank you all, and the hearing is adjourned.

[Whereupon, at 12:18 p.m., the Subcommittee was adjourned.]

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