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[Senate Hearing 107-261]
[From the U.S. Government Publishing Office]

                                                        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
                                _______

                  U.S. GOVERNMENT PRINTING OFFICE
77-437                     WASHINGTON : 2002

____________________________________________________________________________
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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois          SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey     GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia                 PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware           THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri              ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota               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              SUSAN M. COLLINS, Maine
RICHARD J. DURBIN, Illinois          TED STEVENS, Alaska
ROBERT G. TORRICELLI, New Jersey     GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia                 PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware           THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri              ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota               JIM BUNNING, Kentucky
          Linda J. Gustitus, Chief Counsel and Staff Director
                Kim Corthell, Republican Staff Director
                     Mary D. Robertson, Chief Clerk

                            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. GMap of various sectors of the U.S. Border Patrol............    73

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

 3. GINS Change of Address Form..................................    75

 4. GINS Form I-213, Record of Deportable/Excludable Alien.......    76

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

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

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

 8. GLetter 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. GLetter 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

 10. GLetter 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. GLetters 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. GChart entitled U.S. Border Patrol Suspect Processing.......   139

 13. GMemorandum 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

 
  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 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\
---------------------------------------------------------------------------
    \1\ See Exhibit No. 1 which appears in the Appendix on page 73.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 6 which appears in the Appendix on page 79.
---------------------------------------------------------------------------
    Now, how many of those people who were released on their 
own recognizance that they would appear at a hearing--how many 
of 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.
    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 
Border 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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Pearson appears in the Appendix 
on page 49.
---------------------------------------------------------------------------
    Nowhere are the challenges greater than along our land 
borders. Our border management strategy aims to facilitate the 
flow of legal 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 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 
immigration-related 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 
long-term detention. Another avenue to effect removal is to 
reinstate a 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?
    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 
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.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 6 which appears in the Appendix on page 79.
---------------------------------------------------------------------------
    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.
    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 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 enroll 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.
---------------------------------------------------------------------------
    \1\ See Exhibit No. 12 which appears in the Appendix on page 139.
---------------------------------------------------------------------------
    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 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?
---------------------------------------------------------------------------
    \1\ See Exhibits No. 4 and 5 which appear in the Appendix on pages 
76 and 77.
---------------------------------------------------------------------------
    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?
    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 check. So they should be 
done, but your direct question was is there a policy requiring 
this, and there is not.
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    \1\ See Dec. 20, 2001 Memorandum from Michael Pearson to INS 
Regional Directors (Exhibit No. 13) which appears in the Appendix on 
page 140.
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    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?
---------------------------------------------------------------------------
    \1\ See Exhibit No. 4 which appears in the Appendix on page 76.
---------------------------------------------------------------------------
    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 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.
    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 higher-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.

              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.
    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?
    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.
    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?
    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.
    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 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?
---------------------------------------------------------------------------
    \1\ See Exhibit No. 2 which appears in the Appendix on page 74.
---------------------------------------------------------------------------
    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.
    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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Hall appears in the Appendix on 
page 61.
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    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 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 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-and-release. 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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Olson appears in the Appendix on 
page 65.
---------------------------------------------------------------------------
    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 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 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 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Davis appears in the Appendix on 
page 69.
---------------------------------------------------------------------------
    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, 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, 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 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.
    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 involved 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?
    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 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, 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.
    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?
    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 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 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.
    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.]

                            A P P E N D I X

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