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36–029 PDF 2007

EMPOWERING LOCAL LAW ENFORCEMENT TO

COMBAT ILLEGAL IMMIGRATION

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE,

DRUG POLICY, AND HUMAN RESOURCES

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

AUGUST 25, 2006

Serial No. 109–243

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

BRIAN P. BILBRAY, California

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

LAWRENCE HALLORAN, Deputy Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY, AND HUMAN RESOURCES

MARK E. SOUDER, Indiana, Chairman

PATRICK T. MCHENRY, North Carolina

DAN BURTON, Indiana

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

STEVEN C. LATOURETTE, Ohio

CHRIS CANNON, Utah

CANDICE S. MILLER, Michigan

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

ELIJAH E. CUMMINGS, Maryland

BERNARD SANDERS, Vermont

DANNY K. DAVIS, Illinois

DIANE E. WATSON, California

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

MAJOR R. OWENS, New York

ELEANOR HOLMES NORTON, District of

Columbia

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

J. MARC WHEAT, Staff Director

DENNIS KILCOYNCE, Counsel

MALIA HOLST, Clerk

(III)

C O N T E N T S

Page

Hearing held on August 25, 2006 ........................................................................... 1

Statement of:

Cloninger, Alan, sheriff, Gaston County ........................................................ 40

Lands, Michael, District Attorney, Gaston County ....................................... 43

Moose, Emily, mother of Scott Gardner ......................................................... 55

Pendergraph, Jim, sheriff, Mecklenburg County ........................................... 48

Smith, Kenneth A., Special Agent, ICE .......................................................... 15

Letters, statements, etc., submitted for the record by:

Cloninger, Alan, sheriff, Gaston County, prepared statement of ................. 42

Foxx, Hon. Virginia, a Representative in Congress from the State of

North Carolina, prepared statement of ....................................................... 82

Lands, Michael, District Attorney, Gaston County, prepared statement

of ..................................................................................................................... 45

McHenry, Hon. Patrick T., a Representative in Congress from the State

of North Carolina, prepared statement of ................................................... 10

Moose, Emily, mother of Scott Gardner, prepared statement of .................. 58

Pendergraph, Jim, sheriff, Mecklenburg County, prepared statement of .... 51

Smith, Kenneth A., Special Agent, ICE, prepared statement of .................. 18

Souder, Hon. Mark E., a Representative in Congress from the State

of Indiana, prepared statement of ............................................................... 5

(1)

EMPOWERING LOCAL LAW ENFORCEMENT TO

COMBAT ILLEGAL IMMIGRATION

FRIDAY, AUGUST 25, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY, AND HUMAN RESOURCES, COMMITTEE ON GOVERNMENT REFORM, Gastonia, NC.

The subcommittee met, pursuant to notice, at 10:06 a.m., at Congresswoman Myrick’s District Office, Gastonia, NC, Mark E.

Souder (chairman of the subcommittee) presiding.

Present: Representatives Souder, Myrick, Foxx and McHenry.

Staff present: Dennis Kilcoyne, counsel; Scott Springer, congressional fellow; and Kimberly Craswell, clerk.

Mr. SOUDER. The subcommittee will come to order. Good morning

and thank you all for coming. This is the third hearing our subcommittee has held this year on the subject of illegal immigration.

The first was in Winston-Salem in April on illegal immigrant

gangs, and the second was just last month in Washington, DC, on

the proposed expansion of the Southwest border fence. I’d like to

thank my fellow member and good friend, Sue Myrick, classmate,

who was—has invited us here to her district. I hope that the information we gather at this hearing will help us achieve the goals of

securing our border and enhancing Federal partnership with State

and local officials in combating illegal immigration. I should also

point out that this subcommittee did a major border report three

or 4 years ago before the creation of the Homeland Security Committee that was the foundation of the border committee, that 2-

year cycle we did somewhere in the vicinity of 10 to 12 hearings

on both the Southwest border and on the Northern border in Canada so—and we have oversight over the Justice Department, which

is why we work on illegal immigration. This is just the third hearing in the cycle of the last 6 months.

Since 2001, the illegal immigrant population in this country has

been swelling by nearly 1 million annually. After crossing the border, most illegal immigrants undoubtedly would prefer to quietly

find work and earn money rather than participate in any activity

that might draw the attention of law enforcement. However, some

of them feel no such restraint, as many Federal, State and local police agencies will attest. As the illegal immigrant population swells,

so too does the population of criminals among them.

To cope with this growing problem, drastic improvements in border security and internal enforcement of immigration laws are

needed. Today’s hearing will focus on what Federal law enforceVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
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ment agencies can do and are doing to partner with State and local

officials in enforcing immigration laws.

The main Federal agency tasked with internal enforcement of

immigration laws is Immigration and Customs Enforcement, or

ICE, which is part of the Department of Homeland Security. The

most recent estimate for our illegal immigrant population from

January 2005 is 10.5 million. Undoubtedly, then, it must be at 11

million by now, and over 300,000 of these are in North Carolina.

For this, ICE has approximately 3,500 agents. It is unable to adequately pursue all leads on immigration violations, even ones that

involve serious criminal violations. As long as these violations can

only be pursued spottily there is little hope of building a genuine

climate of deterrence of those inclined to violate immigration laws.

Even deportation of criminal aliens released from prison cannot always be done, due to the lack of resources and coordination, not to

mention that they come right back across.

One solution to these dilemmas has been growing since it was

first tried in 2002. This is known as the 287(g) cross- designation

training program. By the authority of Section 287(g) of the Immigration and Nationality Act, the Department of Homeland Security

can enter into assistance agreements with State and local agencies.

The agreements are spelled out in a Memorandum of Understanding, MOU, in which the scope, intent, responsibilities and procedures of the program are covered. These agreements allow State

and local officials much-needed flexibility to shape and guide the

program. ICE personnel then train the State and locals in a 5-week

program—currently costing roughly $520 per officer trained—focusing on immigration law, civil rights, intercultural relations and

issues and illegalities surrounding racial profiling. Once the training is completed and examinations are passed, the officers receive

official ICE certification and authority to enforce certain immigration laws. Thereafter, ICE continues to provide supervision and

support so that officers might respond appropriately when a suspect is found to be an illegal alien. Though this opportunity has existed in law since 1996, no State or locality took advantage of it

until the Florida Department of Law Enforcement did so in 2002.

In practical terms, 287(g) training and certification gives local

law enforcement a vital tool in combating a criminal class that

grows with the illegal immigrant population. Many criminal illegal

aliens who, given circumstances, might otherwise have to be released can be held and processed for deportation or Federal prosecutions. State and local officers can interview suspects and prison

inmates to determine if immigration laws have been violated, process and fingerprint them for such violations, prepare documents for

deportation and refer criminal aliens to ICE for potential Federal

prosecution.

A recent case in California demonstrates the urgent need for expanded 287(g) training. On July 15, a notorious gang member in

Los Angeles, one Mauricio Alejandro Jimenez, shot and killed a

pair of 1 and 3-year-old brothers. Area law enforcement was well

acquainted with him, having arrested him seven times for various

gun and gang crimes.

He had recently been deported after serving a year in prison, but

had immediately re-entered the country and returned to haunt his

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old neighborhood. Had local authorities been trained under 287(g)

and received authority to enforce immigration laws, they would

have been able to immediately arrest and process him without having to wait for any Federal assistance or for him to commit further

crimes under State law.

Many such criminals like Jimenez are able to thrive in their communities because of the reluctance of their victims to cooperate

with police. Otherwise law-abiding illegal immigrants are fearful

that any contact with authorities could result in deportation. But

once officers, deputies and detectives obtain immigration-law authority, they can arrest gang members like Jimenez and remove

them from the neighborhoods without the delays caused by having

to painstakingly build trusting relationships with suspicious immigrants.

It is the constitutional responsibility of the Federal Government

to protect the borders and regulate immigration. Given the scope

of the problem of illegal immigration, the Federal Government

should move quickly to provide 287(g) training and authority to the

growing number of State and local jurisdictions that are requesting

it. This hearing will explore the North Carolina experience with

287(g) and seek answers to the strengths and weaknesses of the

program.

For the first panel, we are joined by Mr. Kenneth A. Smith, Special Agent of Immigration and Customs Enforcement’s Atlanta office.

On our second panel, we are joined by Gaston County Sheriff

Alan Cloninger, District Attorney Michael Lands of Judicial District 27A, Mecklenburg County Sheriff Jim Pendergraph and Ms.

Emily Moose, who has a painful personal story about what happens

when government fails to properly enforce its immigration laws.

Now I have a couple of additional points I want to make. There

has apparently been some misunderstanding on a few points that

we’ve attempted to clarify. This is a congressional oversight hearing; it is not a town hall meeting. We have brought two panels of

witnesses here to answer questions and give us information that

we as Members of Congress need to see that this program is being

utilized as it should be and to be better informed is the purpose

of our subcommittee under the Constitution and the laws of the

United States. I thank all the audience members who have come

here to observe us as we carry out our constitutional duties and we

ask you all to help us by refraining from any interruptions about

the rule of law and we need to follow the law. We allow people to

observe because we represent you in Congress and people are allowed to watch our congressional hearings in Washington as they

are in the field. It’s good for us to get into the field where we can,

one, not have bells go off and being—running around and actually

focus our attention rather than, how do I say it, before ADD when

we got elected to Congress and ADD shortly thereafter because of

all the things that come at us.

Let me briefly explain for those who are not familiar with our

committee. Congress is set up such that we have authorized committees. The best—a simple example would be education where we

set out the No Child Left Behind.

4

Then we have an appropriations committee that would fund

those decisions that are guidelines by the Education Committee.

Then we have oversight committees to see that the executive

branch is implementing the intent of what was authorized and

funded and that also to see whether there need to be changes in

those laws. This is part of a—an oversight committee. The oversight committees in Congress were created almost immediately

even before the authorized committee because even back in George

Washington’s day Congress immediately became concerned whether the executive branch was implementing the programs that they

did. So this committee is actually one of the oldest in Congress.

Then we have—My subcommittee that I chair has oversight over

all criminal issues. Drug policy in particular is where our primary

focus is in Congress because we do the authorizing and the oversight on the drug czar’s office and on narcotics. So about half of our

hearings deal with narcotics. It’s taken us into border issues and

immigration issues.

The full committee, and you’ll see today and I’ll explain, we—we

swear our witnesses in; that probably it used to be we were best

known for doing many investigations on the previous Presidential

administration under President Clinton but lately it’s—I don’t want

to talk about the past, and Mark McGwire and Rafael Palmeiro

who pointed his finger at both Patrick and I and said that—Patrick

is vice chairman of our subcommittee, Congressman McHenry, and

he said: I never used these steroids. And it was pretty amazing.

Anyway, that’s the genesis of our committee and what our subcommittee does and it’s great to be here again in North Carolina

and now we yield to the vice chairman of the subcommittee Congressman McHenry.

[The prepared statement of Hon. Mark E. Souder follows:]

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7

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Mr. MCHENRY. Thank you, Chairman Souder. Thank you for

coming to Western North Carolina once again. Thank you for coming back and I’m very grateful that you chose my native Gaston

County to have this important hearing and I want to thank my colleague Sue Myrick for opening her wonderful office and hosting us

here today. This is quite an important event for us to discuss the

impact on illegal immigration; that impact that it has on local law

enforcement. This is the discussion today. We’re not going to go

outside of that purview that we have here on this committee. As

Vice Chair of the committee as Chairman Souder said we have

oversight over criminal justice programs in the executive branch.

We also have enormous oversight over drug policy; anti-drug policy,

and that’s where we have been very involved when Chairman

Souder brought the committee down a few months ago to the

northern part of my district to discuss how to curb meth abuse.

But today we have an important hearing, Mr. Chairman, about

illegal immigration and the impact it has on our communities and

local law enforcement. With an estimated 11 to 12 million of illegal

immigrants in the country a number of congressional field hearings

are being held at this August work period when Members of Congress are back in their districts for a full month in order to get a

better understanding of the challenges facing our Nation as a result of this illegal flow of coming—of folks coming across our border. It’s often said that America is a Nation of immigrants. While

that is true I also believe that America is a Nation of laws and

without the respect for law we cannot have a foundation for society. And what we are seeing with illegal immigration is a disrespect and a disregard for our laws that we have in place. And

in—while North Carolina is not a border State it’s greatly impacted

on many fronts by those who choose to ignore our laws and enter

this country illegally.

According to a March 2006 projection report by the Federation of

American Immigration Reform, FAIR, there are an estimated

450,000 illegal immigrants in North Carolina. This increase in population makes the State one of the top five highest percentage of

illegals. We have one of the top five illegals—illegal populations in

the Nation. Now while we’re not a border State we are being affected as if we were a border State and it’s important now more

than ever that we empower local law enforcement to deal with the

rising tide of illegal immigration. This is a multi-tiered front that

we have to face and while we need to certainly secure our border

the discussion here today is how do we get the tools in place for

local law enforcement to deal with this illegal population.

There has also been a growing interest in the 287(g) program

which allows local law enforcement to assist Federal agents in performing immigration law enforcement functions. As the illegal population in the States grow we have witnessed a surge in crimes

linked to illegal immigration over the past few years ranging from

drunk driving accidents involving illegals to increased drug trade

and interstate smuggling. While all of these are very important

things we have to have the tools in place to curb them and stop

them. And there’s been a noted increase in trafficking of a more potent form of methamphetamine called Ice which is primarily manuVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
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factured in Mexico before it’s distributed throughout Western

North Carolina and throughout the Southeast.

I want to thank Sheriff Cloninger, my sheriff here in Gaston

County. Thank you so much for agreeing to testify today and for

your perspective. It’s very important as someone—as you’ll say in

your testimony as someone who is going through the process of getting your deputies crossed over into the 287(g) program. We also

have Sheriff Pendergraph from Mecklenburg County and he’s going

to discuss the tools that they currently have in place with the

287(g) program and the results they’ve been able to get already in

Mecklenburg County. Additionally, my district attorney as well,

Mike Lands. Thank you for being here and I’m looking forward to

your testimony because of your unique perspective dealing in the

criminal justice system in the courthouse. Also ICE Agent Ken

Smith. Thank you so much for agreeing to be here. And, finally,

Ms. Moose, I’m very grateful for your willingness to tell your story

and to share with the community the pain and the suffering you’ve

gone through because of illegal immigration.

While this is a larger national debate it’s important that we not

lose sight of the effect it has on local communities and local law

enforcement and that’s the discussion we have here today. And I

want to thank Sue Myrick for her leadership in Congress dealing

with this challenging issue; her innovative ideas to crack down on

illegal immigrants that are committing heinous crimes here in this

country. Your leadership has been noted in Washington, DC, and

I certainly appreciate it as a colleague, neighbor and friend. And

so with that, Mr. Chairman, thank you so much for agreeing to

have this field hearing today. It’s important that we get feedback

from local folks and I appreciate you traveling down to our great

State once again.

[The prepared statement of Hon. Patrick T. McHenry follows:]

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Mr. SOUDER. Thank you. Before yielding to Congresswoman

Myrick, it’s been great to have both Congressman McHenry and

Congresswoman Foxx on our subcommittee as Members of Congress and she’ll be joining us hopefully soon is my understanding.

But Congresswoman Myrick and I were elected the same year in

1994. She’s been a very passionate advocate for North Carolina.

One way you can tell this, this is my third time at a hearing in

the Charlotte area that in—early on in our term because I’m a senior member of the Education Committee we did an education event

in Charlotte. We did a—I said the authority of our subcommittee

is broad. We did a series of hearings on faith-based and a few years

ago we were in Charlotte looking at all the different faith-based

programs and Charlotte is one of the centers in the country so we

did a regional Southeastern U.S. area on faith-based in Charlotte.

She’s also been buttonholing people for many years before immigration—she was concerned about immigration laws before being concerned about immigration laws was cool, if that would be the correct country phrase, and very concerned about these issues and has

been very passionate for multi- terms and it’s great to be here

today with both of my colleagues from North Carolina and now I’d

like to yield to my distinguished friend and colleague Congresswoman Sue Myrick.

Mrs. MYRICK. Thank you, Mark. I appreciate it very much and

we’re grateful to you for being here and, Patrick, it’s good to have

a vice chairman of the committee from Gaston County. That’s always very good. It gives us a little more clout up there as well. And

I also want to thank all of you who took your time to come today.

I know some of you took time off of work to be here because this

is an important issue to you as well. This is not an issue that only

affects the border States as we found out and the explosive growth

that we’ve had in North Carolina with illegal immigration has really changed our State in the past decade and we’re not, of course,

the only one dealing with this new dynamic that’s been presented.

That’s one reason we’re finally able to get the attention of people

in Congress to make something happen. It is a nationwide issue

and it challenges the core beliefs of our country and has national

security implications of grave importance.

We’re a Nation of immigrants as has already been said. Most of

you probably know your ancestral heritage. We all came from

someplace, our grandparents or great grandparents did, and we

know that there are economic and societal benefits to legal immigration but we’re also a Nation of laws and immigrants who enter

our country illegally have undermined the fundamental tenet of

our society, that’s respect for our law. We in Congress are largely

responsible for the illegal immigration crisis that we’re now trying

to fix because for years as was mentioned by the chairman efforts

to protect our Southern border were hampered by the Federal Government turning a blind eye to the ever-growing problem and, consequently, you know the stats; eight to 13 to 20 million people

today in the country, and that doesn’t include the children of illegal

immigrants who are born here who become citizens; granted automatic citizenship. It strains our schools and our social services and

our law enforcement.

13

State and local governments are bearing a great deal of the cost

of this illegal immigration and they’re fed up with the Federal Government, very frankly, not carrying out its responsibilities. I hear

it every day from all of my constituents, I’m sure my colleagues do

the same, that we aren’t protecting our borders and enforcing our

laws. And, you know, they have a right to be angry about the fact

that we haven’t done everything we should. Even more troublesome to me is the very real possibility Islamic fundamentalists

have slipped into our country to commit acts of terror and this is

a very important part of this whole problem. What’s going on in the

Middle East today with Iran and the funding and the training and

the supporting of terrorists and the hate for America that’s being

generated by the Islamic fascists is no secret. They’ve made it clear

they want to kill us and the images on TV of Iranian troops who

are marching, the young people in the stands saluting was an

image of 1938 Germany all over again and we all vowed that

wouldn’t happen and so, you know, when it comes to the big picture of terrorism worldwide when are we going to wake up in

America and political correctness stop.

The Department of Homeland Security and Congress are currently working together in an effort to secure our borders and some

progress is being made and, yes, the National Guard troops have

helped but there is a great deal of work left to be done and I truly

believe we can do this if we put the resources behind it that are

needed and, unfortunately, interior States like North Carolina are

still fighting an uphill battle to get the help that we need with illegal immigration. Immigration and Customs Enforcement, the agency charged with investigating, apprehending and deporting criminal illegal aliens, doesn’t receive adequate resources to do their job.

I mean, we’ve got phenomenal people here who are doing just unbelievable things with very limited resources in North Carolina.

We’re very blessed by good committed people who care but ICE is

for the most part the only Federal agency—immigration agency

working in the interior States and they face a monumental challenge in trying to enforce our laws.

So the 287(g) program which you’ve already heard we’re going to

talk about today with our sheriffs does give local law enforcement

agencies the opportunity to help with criminal illegal aliens and to

begin the deportation practice. And that’s what we’re talking about,

criminal illegal aliens. The mission of law enforcement naturally is

to provide public safety and a lot of times their hands are tied

when it comes to this so Mecklenburg County entering into this

has been a great help and you’ll hear about that. Illegal immigration can’t be addressed simply by law enforcement alone and that’s

why I and several of my colleagues have been working very hard

to get an immigration court here in North Carolina because right

now as Patrick mentioned 450,000 at least illegals here. When

they’re arrested and they are told to show up for court in a hearing

they have to go to Atlanta 4 to 8 hours away. Fat chance they’re

going to show up. I mean, we know that.

They don’t go. And that’s been a really big problem. So there are

a lot of States that are smaller than we are that have immigration

courts and we feel that it’s our turn now to get one. We’re working

on that and hopefully it won’t be too long before that happens.

14

Emily Moose is going to testify today. I’ve introduced legislation

that became part of the bill we passed through the House that very

simply says that if you are arrested for driving drunk and you are

illegal you’re automatically deported, and then that the local people

have to report that into a data base federally so everybody will

know. That is part of the bill. We hope it’s going to stay a part of—

we hope we’re going to get Congress support and an immigration

bill done through Congress very soon. If it doesn’t we’ll still push

to get that as stand-alone legislation because it needs to be enacted.

But I really appreciate again the chairman coming because this

field hearing is important. It’s important that they hear from people around the country who are actually doing the legwork and

dealing with the problem and, you know, people in Washington and

the agencies have different jobs but these guys are on the firing

line every day and you’ll hear some testimony today that’s going

to share—show a lot of insight into what the problems are they’re

dealing with and then hopefully this committee and Congress as a

whole will be able to do what we need to do to help solve the problems that they’re facing today. Again, Mr. Chairman, thank you for

your consideration.

Mr. SOUDER. As many of you may be aware for the last 3 months

we have been doing systematic multiple committees, immigration

hearings. This will be the greatest collection of information and

part of that group over a 3-month period totally embedded in the

United States hopefully can lead to action. I needed to mention two

other things that are very interesting at a personal level. One is

I want to congratulate Congresswoman Myrick on this office. As a

former mayor of Charlotte I know she shares a passion for historic

rehabilitation like me. One of the things we’re doing in this cycle

in our committee as I said we have a broad jurisdiction. We’ve been

doing a series of hearings on national parks and being able to preserve downtowns and old buildings like this is just really great.

This is certainly the best district office I’ve been in.

I’ve been in a few nice ones.

Mr. MCHENRY. Actually, Chairman, I just turned around and

saw the mayor of Gastonia and she nearly leapt out of her seat because she’s been working for 6 years on an overnight success for

Downtown Gastonia and she’s getting there and certainly Sue

Myrick’s office here is a vital part of it.

Mr. SOUDER. Charlie Rich years ago when he had the Behind

Closed Doors hit, they said: What’s it feel like to be an overnight

success? He said: Overnight success? I sang in bars for 30 years to

get to my overnight success, and that’s the way it is. The other

thing is I feel a little like coming home. I grew up in the retail furniture industry and spent spring and falls here before half of it

went to China which is another comment but our furniture—we

sold North Carolina furniture; I have in my house North Carolina

furniture so I need to make that note.

I have a couple of procedural things we need to do before we get

started before we hear testimony to take care of these procedural

matters. I first ask unanimous consent that all Members have 5

legislative days to submit written statements and questions for the

hearing record.

15

Any answers to written questions provided by the witnesses also

be included in the record without objection; so ordered. Second, I

ask unanimous consent that all exhibits, documents and other material referred to by members and witnesses may be included in the

hearing record and that all members be permitted to revise and extend those remarks without objection. It is so ordered. Finally, I

ask unanimous consent that all members present be permitted to

participate in the hearing. That objection is so ordered.

Our first panel as it is the custom of a Federal oversight committee is a Federal Government panel and it’s composed of Mr. Kenneth Smith, the Special Agent in charge of the Atlanta office for

the U.S. Immigration and Customs Enforcement [ICE]. If you’ll

stand and raise your right hand. As you know it’s the standard

practice of our witnesses to be sworn in as an oversight committee.

[Witness sworn.]

Mr. SOUDER. Let the record show that the witness responded in

the affirmative. Thank you very much for coming and we look forward to your opening statement and any questions.

STATEMENT OF KENNETH A. SMITH, SPECIAL AGENT, ICE

Mr. SMITH. Thank you, Chairman Souder, Congresswoman

Myrick, Congressman McHenry.

Mrs. MYRICK. Pull your mic back. We’re having trouble hearing

in the back so everybody needs to talk into the mic.

Mr. SMITH. Is that better.

Mrs. MYRICK. Yeah.

Mr. SMITH. Thank you very much for allowing me to testify before you today to discuss the 287(g) program. I appreciate your continued support for the Section 287(g) program, which allows the

Secretary of the Department of Homeland Security to enter into

formal written agreements with State and local political jurisdictions to train and authorize State and local law enforcement officers to perform immigration enforcement functions.

Among the DHS law enforcement agencies, U.S. Immigration

and Customs Enforcement or ICE has the most expansive investigative authority and the largest force of investigators. Our mission is to protect our Nation and the American people by targeting

the people, money and materials that support terrorist and criminal activities. The men and women of ICE accomplish this by investigating and enforcing the Nation’s immigration and customs

laws. ICE recognizes that combating terrorism and criminal activity is best accomplished through a multi-agency/multi-authority approach that encompasses Federal, State, local and tribal resources,

skills and expertise. Sharing information with and providing assistance to our State and local partners in law enforcement is critical

to the success of DHS and to ensuring the safety of our Nation.

Section 287(g) of the Immigration and Nationality Act provides

for effective joint initiatives by allowing DHS to enter into written

agreements with State and local jurisdictions for the purpose of

training and authorizing State and local law enforcement officers

to perform immigration enforcement functions. The Section 287(g)

program involves rigorous, multi-week training that addresses the

specific immigration authorities requested by State and local political jurisdictions. The training results in individual certification for

16

each selected law enforcement officer who successfully completes

the program. It also establishes the supervisory structure over the

officers with authority under 287(g) and prescribes an agreed-upon

complaint process governing officer conduct during the life of the

agreement. Properly constructed, 287(g) agreements are a dynamic

and highly effective force multiplier for ICE and local law enforcement as we work to protect America’s communities.

The first Section 287(g) agreement was established in 2002 in

Florida, where officials were increasingly concerned about the number of terrorist-related cases in that State, many of which involved

foreign nationals. This 287(g) agreement was established with the

Florida Department of Law Enforcement for seven Regional Domestic Security Task Forces located throughout the State. The

Florida task forces have initiated more than 200 investigative cases

and recorded numerous arrests.

Building on the success of the Florida agreement, ICE and the

State of Alabama signed a written agreement in September 2003

to provide immigration enforcement authority to 21 Alabama State

troopers. These troopers have been certified through the program

and now have the authority to perform immigration enforcement

functions incidental to their normal duties as patrol officers and at

driver’s licensing station. They are also trained and certified to

transport and detain aliens unlawfully present in the United

States.

Most recently, ICE entered into agreements in California with

the Los Angeles County Sheriff’s Department, the San Bernardino

County Sheriff’s Department and the Riverside County Sheriff’s

Department. We have also entered into agreements with the Arizona Department of Corrections, and here in North Carolina with

the Mecklenburg County Sheriff’s Office. These agreements provide

officers in each of these departments with statutory authority to

perform the function of a Federal immigration officer in relation to

identifying and processing for removal, under ICE supervision,

criminal aliens incarcerated at their respective correctional facilities. These recent agreements bring the total number of 287(g) officers trained by ICE to 159 officers within seven distinct law enforcement agencies in five States.

These partnerships not only result in the removal of additional

criminal aliens from the United States, but also allow the limited

number of ICE special agents currently assigned to jail-related duties to focus on more complex investigations in the field.

Locally the Mecklenburg County Sheriff’s Office and ICE entered

into our agreement in February 2006. Ten deputies and two sergeants from the Sheriff’s Office received Section 287(g) training in

March 2006, graduated, and were certified in April 2006. This partnership has already proven successful. Since their certification,

Mecklenburg County Sheriff’s deputies have identified numerous

criminal aliens arrested for violating laws within Mecklenburg

County, and processed them for removal from the United States.

The ICE Law Enforcement Support Center, the LESC as it’s

known, is another long-established initiative that provides a wealth

of information to Federal, State and local law enforcement personnel. The LESC allows all State and local law enforcement officers

to request information electronically concerning foreign-born indiVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
17

viduals that they encounter during their normal duties. The LESC

is a 24-hour-per-day, 7-day-a-week law enforcement center that

provides comprehensive immigration—comprehensive immigration

status and identity information about aliens suspected of, arrested

for, or convicted of criminal activity, as well as real-time assistance

to State, local, tribal and international law enforcement agencies.

ICE has effectively used the LESC to consolidate and enhance its

response to its law enforcement partners seeking assistance in immigration-related enforcement matters. Since June 2004 the LESC

has placed more than 35,000 ICE immigration detainers with law

enforcement officials in all 50 States and the District of Columbia.

Most of these immigration detainers were lodged against individuals with significant criminal histories.

ICE will continue to establish and augment effective partnerships and information sharing with State and local law enforcement agencies. Such partnerships are essential to our mission of

deterring criminal alien activity and threats to national security

and public safety. We are grateful for the many State and local law

enforcement officers who assist ICE daily in our mission and we

are pleased to assist them. I’d like to emphasize that in my threeState area of responsibility which includes North Carolina, South

Carolina and Georgia we cannot effectively accomplish our mission

without the daily interaction of our State and local partners. Thank

you again for inviting me and I will be glad to answer any questions you may have.

[The prepared statement of Mr. Smith follows:]

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22

23

24

25

26

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Mr. SOUDER. OK. I will yield to Vice Chairman McHenry to start

the questioning.

Mr. MCHENRY. Thank you, Mr. Chairman. Thank you, Mr.

Smith, for your testimony. I appreciate your perspective. You mentioned the Law Enforcement Support Center. Can you give us more

details on what exactly you do there and how that’s being utilized.

Mr. SMITH. Sure. The Law Enforcement Support Center is just

that. It’s a support center located in Burlington, Vermont. It’s

staffed 7 days a week, 24 hours a day.

It is available to not only ICE agents but to all State and local

law enforcement officers that would like to query an individual to

determine if they’re in immigration data bases. That system is

available to them for electronic—electronic query through the

NCIC system.

Mr. MCHENRY. So all law enforcement are able to access this.

Mr. SMITH. Yes, sir.

Mr. MCHENRY. And do you have some statistics on how it’s being

utilized.

Mr. SMITH. It’s—It’s greatly utilized. I believe approximately

600,000 queries are made to the LESC every year from both ICE—

ICE agents and State and local officers. In North Carolina there

has been a tremendous increase in the use of the LESC. I believe

to date this fiscal year we had about 2,700 queries from North

Carolina law enforcement agencies.

Mr. MCHENRY. 2,700.

Mr. SMITH. 2,700. Out of those 2,700 roughly 300 detainers have

been filed by the LESC with those departments on individuals that

they’ve queried through the system.

Mr. MCHENRY. Is there an outreach program to law enforcement

to let them know that this is available to them.

Mr. SMITH. There is. Actually the LESC works very closely with

various State agencies responsible for the IT infrastructure system,

the criminal history queries that are made by each State. I know

that there is a training opportunity coming up in North Carolina.

I believe they’re doing a presentation to about 300 operators of that

system in North Carolina this fall.

Mr. MCHENRY. I also know that North Carolina recently signed

a Fugitive Operations Team or Fugitive—yeah—Fugitive Operations Team if my memory is correct. Can you describe the function

of that and how that works.

Mr. SMITH. Yes, sir. There are two Fugitive Operation Teams in

North Carolina. Those are managed under the control of our Detention and Removal Section. There is a team in Charlotte that is fully

operational now. There is a team being formed in Raleigh that is

partially operational; will be fully operational this fall. Their focus

is to identify and apprehend aliens that have an outstanding order

of removal from the United States. Those that are—are immigration fugitives that have been here already.

Mr. MCHENRY. And how many folks are on that team? How is

that staffed.

Mr. SMITH. I’m not responsible for those teams but I believe each

team is—is eight individuals.

28

Mr. MCHENRY. OK. Are there any additional resources that you

need in order to perform your—your job? It’s an obvious question.

The answer is yes. If you could elaborate——

Mr. SMITH. Thank you.

Mr. MCHENRY [continuing]. On the yes.

Mr. SOUDER. But I would like to hear it. I have a similar question; that it seems like an obvious question but although we can’t

get that information directly that’s partly why we go out in the

field because in Washington the official answer is no. We don’t

think that’s true. We would like to hear what your needs are.

Mr. SMITH. Obviously our workload is overwhelming and I think

that any Federal, State or local law enforcement official that you’ll

ask will always say that they could use more resources. We do the

best that we can with what we have and we feel that we do a very

good job of prioritizing the work that we are confronted with every

day.

Mr. SOUDER. So will you clarify that.

Mr. MCHENRY. Yes. That sounds like a Washington answer.

Mr. SMITH. Certainly, Congressman, we have plenty of work and

we could keep a large number of individuals very active in our

work. There is no question about that.

Mr. MCHENRY. Go right ahead.

Mr. SOUDER. We’re not—One of the awkward things in these

kind of hearings is we’re not trying to get people in trouble with

their Washington office. Another way to ask the question is if you

had more resources what would you do with them.

Mr. SMITH. We—We would continue to prioritize the work that

we do. Our—Our greatest concerns are attacking the organizations

that facilitate illegal immigration, the smuggling organizations, the

trafficking organizations, working with the county facilities to identify the criminal aliens that are present in their facilities. We

would fully employ all the resources that were provided to us.

Mr. MCHENRY. How many folks do you oversee.

Mr. SMITH. Approximately 200 in a three-State area.

Mr. MCHENRY. 200 in a three-State area.

Mr. SMITH. Yes.

Mr. MCHENRY. How many approximate numbers from North

Carolina.

Mr. SMITH. Congressman, if I could I would like to address that

after the hearing if we could. Typically for operational concerns we

don’t release the number of agents that we have in any one particular area.

Mr. MCHENRY. Certainly. So you could use additional resources.

Mr. SMITH. Certainly.

Mr. MCHENRY. All right.

Mr. SMITH. I think we do a good job prioritizing work with what

we have.

Mr. MCHENRY. Thank you.

Mr. SMITH. Thank you.

Mr. SOUDER. Congresswoman Myrick.

Mrs. MYRICK. One question, you know, I don’t know if you can

answer or not but I know that 287(g) was signed into law about

10 years ago and it wasn’t until 2002 that the program started to

be utilized and I guess my question is for historical background do

29

you know why it took so long for it to get to that point of being

used and then since then what’s been happening across the country?

Mr. SMITH. I don’t. I can speculate that there was significant

changes made obviously after the events of September 11th in the

creation of the Department of Homeland Security and actually the

creation of my agency on Immigration and Customs

Enforcement——

Mrs. MYRICK. Right.

Mr. SMITH [continuing]. And I think when that occurred we immediately with Congress’s help began looking at ways to do our job

to be as effective as we could possibly be in a variety of areas and

I think 287(g) was one of those things in the law that had not been,

quite frankly, utilized with full success before that time and after

the merger with the Immigration and Customs Service cross-designating officers—local officers was nothing new for the Customs

Service. We had cross-designated officers for years to enforce customs laws, Title 19 laws, and I think it was something we’re very

comfortable with and I think part of that also played into the expansion of the 287(g).

Mrs. MYRICK. I know that we were recently told that ICE nationally is doing a contract study on what the needs really are across

the country so I suppose that will give us more information relative

to what needs to be done but, you know, Congress did authorize a

lot of money just recently for 287(g). I’ve got $15.5 million for training; $23.1 million for the Law Enforcement Support Center; $11.4

million for more bed space for detainees. I guess part of the question is do you think that’s really going to be adequate for the

needs? I mean, what we’re seeing all the time is that no matter

how much is being done there really just seems to be more need

constantly and now it’s nationally in the interior States as well.

You know, are we ever going to get ahead of this game? And that’s

part of what we are trying to find out, you know, from you as to

what the needs are. I mean, you know, where can we go with this

because the public is totally frustrated, we’re totally frustrated, I

know you all are totally frustrated and something has to be done

to hit the nail on the head.

Mr. SMITH. Well, I can say I believe that the 287(g) program that

has been implemented in Mecklenburg County by Sheriff

Pendergraph and our office here is a model that will be used

around the country. It is a very good program, they’ve done an outstanding job of establishing it and I think it will be mirrored in jurisdictions throughout the country. This program really is—is in its

infancy and I don’t think we know yet how it will be embraced by

law enforcement agencies throughout the country. There are different points of view from different departments whether or not

they will seek the authority or not and I think we will be prepared

to respond to those agencies that are interested in pursuing the

287(g) authority.

Mrs. MYRICK. You don’t have anything to do with the detention

part of—I mean, the bed space part of this issue.

Mr. SMITH. No, I don’t. We work very closely with Detention and

Removal Operations because their ability to detain aliens certainly

impacts our operational work——

30

Mrs. MYRICK. Right.

Mr. SMITH [continuing]. And so we work very closely with them

to coordinate the detention of individuals that we arrest on criminal investigations or those who have criminal aliens in the jails.

Mrs. MYRICK. Well, that is one of our biggest problems as you

probably know for this area. I just have one more question, if I

may, Mr. Chairman, and I know that Sheriff Pendergraph is going

to testify but he’s had cases—I know of one particular case of an

illegal that has been deported 22 times and back in the country.

How many times does an illegal have to be deported before we take

criminal action against them.

Mr. SMITH. Well, I believe a minor point of clarification, oftentimes we will encounter aliens that have been removed and it’s a

legal difference really; expedited—I’m sorry—a voluntary departure. Somebody who is arrested on the Southwest border and voluntary—voluntarily returns under the law, that is not a deportation, but we will make a referral to the U.S. Attorney’s Office on

each and every re-entry case that we come across. So every time

that we encounter an alien that has been deported and enters the

United States that’s a Federal felony and we make those referrals

to the U.S. Attorney’s Office.

Mrs. MYRICK. Thank you. Thank you, Mr. Chairman.

Mr. SOUDER. I wanted to pursue a little more in depth about the

questions and let me see if I can sort this through. As Special

Agent in charge in Atlanta you oversee North Carolina, Georgia

and South Carolina? Did I——

Mr. SMITH. Yes, sir. The Office of Investigations.

Mr. SOUDER. And so in your—your regional office you’re in

charge of investigations and there is a separate special agent in

charge of deportation.

Mr. SMITH. In Atlanta my counterpart is the Director of Field

Operations for Detention and Removal Operations.

Mr. SOUDER. And that when—This falls directly under the last

question. When somebody is—enters illegally and then convicted of

another crime and then they go back across and come back in is

there a cumulative penalty that’s building? In other words, if—if

you investigate a case where somebody has committed the crime of

illegal entry then got arrested on a DUI, deported, they come back

in again on an illegal entry and then either you pick them up in

a—one of your divisions on a detention and removal or a drug case,

a DUI for some reason, do we have a law of building a cumulative

penalty or each time do they just get penalized for the crime that

is in front of us? In other words, when you have a multiplicity of

crimes is there a disincentive to continue to build your criminal

record.

Mr. SMITH. I would—I wouldn’t be able to respond to the committee on—specifically to that question. It certainly plays into the—the

decision of the U.S. Attorney’s Office on whether to pursue that

case criminally based on the number of re-entries that an individual may have, the type of crimes they were previously convicted for

and that sort of thing. Re-entry after deportation again is addressed by the U.S. Attorney’s Office and I’m not sure that the

number of previous removals, whether that factors into the sentencing guidelines that would be used or not but I can clarify that.

31

Mr. SOUDER. Because I understand because there are—underneath your question—underneath your answer which I believe also

to be accurate from other hearings is that what you have in effect

said is that the U.S. Attorney is relatively overwhelmed already

and, therefore, really can’t take all of these kind of cases so one of

the decisions of whether to prosecute and what level to prosecute

is often determined by how many violations. At hearings, you

know, in El Paso multiple times they don’t even detain someone or

they weren’t detaining someone until they caught them the 17th

time that they’ve since had to—they basically gave up for a while,

now they’re once again tracking that and it makes it a very difficult problem for local law enforcement if, in fact, they even go

through this whole process and then we don’t have a secure border

and they come back in again and that one of the things we need

to look at legally in addition to as we work through whatever we

do work through on—on work permits or some type of way to work

through with here, clearly your previous record needs to be part of

that and—as well as speaking English; that there are certain

things that need to be part of this negotiation and it’s very troubling that, in fact, that in effect to the earlier question of you could

use more resources, in fact, if—that suggests probably the U.S. Attorney could use more resources, we’re trying to get—at least we’ve

authorized but not necessarily appropriated yet adequate resources

for detention facilities because what you’re facing here is an incredible challenge and we’re basically shooting with a peashooter which

is what we’re talking about, local law enforcement.

Now let me ask another question. Of the—If you had—You said

you have 200 people working——

Mr. SMITH. Yes, sir.

Mr. SOUDER [continuing]. In three States. If you had another

hundred could they be busy.

Mr. SMITH. I believe we could keep another hundred special

agents busy, yes.

Mr. SOUDER. 200.

Mr. SMITH. Impossible for me to say but as you’re well aware the

workload can be overwhelming and at what number we would be—

would not be busy any longer, you know, it would only be an estimate.

Mr. SOUDER. And in your experience in working—looking at investigations if there are—anybody who has ever been on the border

knows that we’re just wild guessing that there are 10.5 or 12 million. What we know is who we pick up; not who we’re missing. But

that’s as good a wild guess as there is and if it’s 300,000 to 500,000

in North Carolina basically with whatever percentage of 200 agents

that we’re using we’re talking here a focus on—your investigation

is focused on presumably criminal investigations beyond just illegal

entry to the United States, thresholds of drug crimes, other crimes

for deportation, would that be true.

Mr. SMITH. Yes, sir. We are responsible for immigration enforcement as well as enforcement of the customs laws from our agencies

and that would include drug trafficking, drug smuggling, human

trafficking, illegal exports of equipment out of the United States to

other countries. A wide variety of responsibilities.

32

Mr. SOUDER. So, for example, we’re not really talking here about

deportation——

[Ms. Foxx enters the room.]

Mr. SOUDER [continuing]. For illegal immigration because to get

500,000 people you would need a lot more—even more than 200

agents when they come back. We’re really talking here of how

many agents for crimes in addition to illegal entry of what you

need, would that be a fair statement? That when I said another

hundred, another 200 you were talking about a workload, not just

trying——

Mr. SMITH. Investigations of criminal aliens, yes, sir.

Mr. SOUDER. And investigations of criminal aliens by your definition ICE is not just—is not even predominantly illegal entry in the

United States, it’s criminal investigations of illegal entry plus other

things, is that fair to say.

Mr. SMITH. It would be a wide variety of things. Our first concern, obviously our No. 1 priority is national security. Anything

that we can do to deter acts of terrorism is first and foremost on

our agenda. We’re very active with our—the Joint Terrorist Task

Forces in all the areas in the three-State area, we play a key role

in that task force, and then public safety. Those criminal aliens

who pose the greatest public safety threat to the public would be

a second part of that.

Mr. SOUDER. Secretary Chertoff working with Congress has finally aggressively gone to detainment of OTMs when caught other

than Mexicans. That—Is this being implemented by the internal

part of the Nation as well as the border that there is a—that if you

get an OTM that they’re detained as a priority and not released on

their own recognizance to show up of which 92 percent don’t show

up; the 8 percent who do show up you wonder about; that the

OTMs we understand at the border are now being held. Is that

true in your region if you get tipped off of an OTM and do you—

do you differentiate between an OTM which would include Guatemala say and the Middle East.

Mr. SMITH. It’s my—my belief that the differentiation is based on

the underlying—the underlying reason for their arrest, how they—

did they come to our attention; the other factors, gang members;

are they a public threat, are they visa overstay concerns. Those individuals would be detained. I would say that over the past 60 days

or so there has been a tremendous effort by not only my office but

by the Office of Detention and Removal or the Office of Investigation in our area to detain all aliens that we encounter and we’ve

worked very hard at that over the last 60 days and have detained

very large numbers of aliens.

Mr. SOUDER. Obviously my question came very close to profiling

which legally is—is hard; however, we do have countries on a

watch list; if you’re on a terrorist list, OTMs from those countries

would presumably be a priority. Also people on watch lists would

presumably be a priority and I wondered as an internal inside the

U.S. policy if you get a tip that there is an OTM in the region and

they for whatever reason have been picked up even if it’s just illegal immigration, if they’re an OTM from the country on the watch

list or a person on the watch list presumably we detain them and

hold them and don’t release them on the street.

33

Mr. SMITH. We refer to that as—to those individuals as special

interest aliens——

Mr. SOUDER. People of special interest.

Mr. SMITH [continuing]. And that would be accurate.

Mr. SOUDER. And do you have adequate detention facilities for

those.

Mr. SMITH. Yes, sir.

Mr. SOUDER. And have you had many persons of interest in your

region.

Mr. SMITH. Certainly in our three-State area with the population

that we have we often encounter special interest aliens.

Mr. SOUDER. And do you sense that most of those come through

the Southwest border.

Mr. SMITH. I would have to—I couldn’t respond directly to that

for my area but certainly the Southwest border isn’t the only

threat. Visa overstays, individuals that come here legally but overstay their visa would be another problem.

Mr. SOUDER. In the higher-risk population what percentage

would you say are visa overstays? Half? Just ballpark. I’m not

going to—We’re not going to hold you to it because a lot of people

think of this as just a border question. The visa overstays are

emerging from these hearings as a major problem particularly in

higher-risk areas where they’re not in direct employment questions.

Mr. SMITH. I feel comfortable in saying without having those

numbers immediately available to me that the majority would be

overstays.

Mr. SOUDER. And the—I think at this point our Congress—another member of our subcommittee, Congresswoman Virginia Foxx,

is—is here. She had when she was first introduced to the Republican Conference my favorite introduction of any member that there

ever was from Cass Ballenger from North Carolina as a spirited

mountain woman. Would you like to make any comments.

Ms. FOXX. I have a statement but you’re doing such a good job,

Chairman Souder, that I think you ought to continue and I just

want to say thank you for coming and it’s obvious from the crowd

here that there is a great deal of interest in this area and I want

to thank Congresswoman Myrick and Congressman McHenry for

organizing this meeting.

I do have a statement I’ll give a little later but you’re doing a

great job and I think you ought to continue.

Mr. SOUDER. Thank you. Let me just ask a few more questions

but first I understand that basically——

Mrs. MYRICK. Mark, you need to use the microphone.

Mr. SOUDER [continuing]. That I—There is a little feedback, too,

so it’s kind of a double——

Mrs. MYRICK. Yes. That’s true.

Mr. SOUDER [continuing]. That—and I appreciate very much the

work ICE is doing. You’re in an incredible politically difficult situation because here in North Carolina like Indiana it’s not clear

where we even meet our employment—so you’re getting pressure

from both ends, pressures on profiling, lack of adequate staff, lack

of detention beds, a frustration among agents that if you actually

make your case and get somebody deported they come right back

34

in. It’s an incredibly frustrating process. Nevertheless, it’s something that clearly you cannot have security in the United States

until we do this. We have a huge change of individuals in the

United States that we don’t know who they are, we don’t know

what it means in our political system or economic system and it’s

a huge challenge and that’s what we’re trying to sort through. This

isn’t meant to be critical of ICE but we’re trying to zero in——

Mr. SMITH. Absolutely.

Mr. SOUDER [continuing]. On your particular needs that—I’m

still—Of the—How often do you when you work a deportation case

through an ICE investigation on narcotics, on other criminal activity that—how often do you see after the person has served that you

run into the same person again and they’re an illegal.

Mr. SMITH. That’s difficult—difficult to say and obviously it does

occur but we’ve been very active, for example, in—in the entire

three-State area but particularly here in North Carolina with our

Community Shield Program where we’ve aggressively addressed

the transnational gang problem and I think we have arrested and

removed somewhere near 400 gang members since the initiation of

the program in May 2005 and using that as a—that program as a

gauge I know that we have encountered some gang members that

have re-entered but it—surprisingly it is not a tremendously large

number. We have not seen a great deal of that in that particular

segment of our work.

Mr. SOUDER. Now in the particular State and local law enforcement training do you find that there is more demand for this program than you are able to have trainers at this point.

Mr. SMITH. The—The expansion of the program to—to areas such

as Mecklenburg County there is no question it is a great force multiplier; it’s a great program. It does add additional responsibilities

to our current staff in our office. So, yes, the program does add additional work—an additional workload to our office. We believe that

workload is—is time well spent by our—by our agents and managers because of the return on the investment.

Mr. SOUDER. So there is two questions here. Actually my question is more related to if more departments wanted to train personnel do you have adequate staff to train them but you also said the

additional part of this is when you train them they detain more

people and then you have more detention and removal work and

the U.S. Attorney has more work as well, which we need to make

sure we address in Congress but if you could also answer the question if every county in North Carolina suddenly said that they

wanted to be cross-trained how would you meet that need.

Mr. SMITH. That would be difficult. The—The—Really two issues.

The training for the program is a separate issue and handled centrally, if you will, coordinated by our headquarters. They provide

the trainers and the material and the dates for classes would be

coordinated by—by our headquarters and done centrally, not—not

by our individual offices. The—Where it does impact us is the oversight role that our agents play and our supervisors play working

jointly with the local and county officers that are involved in that—

that program.

Obviously if we encounter more aliens and process more aliens

for deportation the workload goes up and, again, that—as you menVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
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tioned that goes to everyone involved in the process, the Deportation and Removal Division, the U.S. Attorney’s Office, the Immigration Court.

Mr. SOUDER. And I know this is a dicey question and I hope will

ask—this will be my last and see if any of my colleagues would like

to ask any additional questions—that—that presumably you

have—certainly the U.S. Attorneys have to have thresholds of cases

that they’ll say—you alluded to that earlier—we don’t particularly

want to announce precisely what those thresholds are because

what we have found is that when the threshold is announced on

how much narcotics then everybody gets like one pound less, that—

that you—but there are thresholds here but when State and local

law enforcement which is already financially strapped make these

cases I’m sure one of the frustrations that we’re going to have is

increasingly people hear this heavily in Arizona and increasingly in

Texas and New Mexico as well when we hold hearings in those

areas that local law enforcement will take the initiative and then

the Federal agents won’t do anything about it. That given the fact

that your thresholds are going to be very high and that while you

didn’t say you were underfunded because you’re being as efficient

as you can with the resources that you have suggested that you

could use double even, keep your people busy, and that would still

be a threshold question with the U.S. Attorney’s Office, is do State

and local law enforcement get any reimbursement for detention?

Do they get any reimbursement if the local prosecutor—can the

local prosecutor handle this type of thing? Do we need a supplementary strategy that if—a legal strategy that if a local community

wants to impose a lower threshold than the Federal strategy guidelines that somehow we address some kind of assistance with that

because you’re unlikely—if you only have a few communities

around the United States that are tapping into this depending on

their local politics those communities are going to disproportionately influence the regional office. For example, Georgia around Atlanta has—the district has at least the same pressure that’s in this

area but if his local political situation hasn’t done that you could

have all your ICE investigations in someone over here and the

question is do we need a supplemental strategy for things that

don’t meet the Federal threshold?

Mr. SMITH. As it develops I certainly think that is an area that

will need to be looked at. I think the goal of the program really is—

is two-pronged. One certainly would be to identify those criminal

aliens that would be subject to additional criminal prosecution but

as we are doing in Mecklenburg County the real beauty of the program is that it identifies and provides an encounter with a trained

cross-immigration official to every formal individual that enters

that facility so it allows us to begin that process which would not

have necessarily a huge impact on the criminal system, the legal

system; it certainly would on our Detention and Removal capabilities, but really two-pronged, but I think you’re correct in that the

more individuals that we encounter the greater pressure we’re

going to place on—on criminal leads also.

Mrs. MYRICK. I know you said you don’t want to answer this publicly but I do afterwards want to talk to you because I want to

know how many agents are in North Carolina. We continually apVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
36

propriate money in Congress for North Carolina for people and

they are routinely kept in the Atlanta office and we don’t get them

so just if you will be so kind as to share that with me privately

I would appreciate it and thanks for being here.

Mr. SMITH. Thank you.

Ms. FOXX. I would like to—I have an interest in what you’re saying about—and I like to use the word education instead of training

in terms of educating local law enforcement people to help expand

what you’re doing and I—I appreciate what the chairman said. We

hear a lot of criticism of the agency not doing all that it should be

doing but we realize there are many frustrations that you all have

in trying to get your job done. I have some ideas I think on ways

that we could expand the programs that you have for educating

local law enforcement people and one question that came to my

mind that hasn’t come up before, it seems to me that the ICE folks

have certain kind of education that they go through. Do you see

that there are skills that the local law enforcement people have

that are particularly valuable in the work that you need to do? It

would seem to me that the combination of the two but aren’t they

having some skills particularly in dealing with the criminal element that perhaps aren’t there in the education programs that the

ICE people have.

Mr. SMITH. Well, absolutely, there is no question that we rely

heavily on our day-to-day partnerships with local law enforcement

and it’s critical to—to our work. I have been in Federal law enforcement for over 20 years and developed just such outstanding relationships with—with State and local officers because they are

what—what we depend on to get our job done whether it be in an

investigation of criminal immigration investigation or—or customs,

we—we rely very heavily on them. They’re key partners certainly.

Ms. FOXX. Mr. Chairman, I don’t know—I’m sure all of you all

have done opening statements and I have an opening statement to

make but I want to share an idea that I’ve—has come to me as a

result of reading over the material and preparing for today’s meeting that I want to explore in some depth not just with Mr. Smith

today but I hope that the chairman and others will work with me

on. I’m a former community college president and as I was reading

the material and talk—thinking about this issue of how we can do

a better job of collaboration and coordination between and among

local and State law enforcement people and the ICE folks it occurred to me that we are not utilizing a fabulous system and resource that we have particularly in the State of North Carolina

that I’m familiar with but it’s really a resource throughout the

country and that’s the community college system.

Our law enforcement agents in the State of North Carolina and

especially—are primarily getting their education and their training

through the community colleges and I—I’m proposing that we utilize our community college system to expand the program accessibility. You mentioned that the program now is a central program

and it’s not a very expensive program in the sense of it costs now

about $520 for the materials for somebody to go to the program but

it’s a 5-week program and if people have to go to a central location

and either stay there 5 weeks and travel back home during that

time it’s got to be a very expensive program. And it would seem

37

to me that we could really expand our capabilities for a fairly small

amount of money in the grand scheme of things by being able to

provide certified educators from ICE to go into the community college system and provide this curriculum to what—to do a trainers

program or an educate-the-educators program and then be able to

offer those programs through the community college system and it

would seem to me that even could be integrated into the criminal

justice programs that exist and every community college I believe

in the State of North Carolina does some form of basic law enforcement education and it either has a criminal justice program or is

affiliated with one of the community colleges that does, and I think

that we need to investigate how we might be able to present a

model program in the State of North Carolina that could then be

used by community colleges all across the country but I’d like for

my colleagues and I to explore this possibility of doing that. It is

bound to be useful as a possibility but particularly, again, to provide that certification close to home and help us be able to help you

more than we’re able to do that and also, again, make it very affordable. So I’m going to make a formal proposal to the chairman

again and to—to my colleagues that we look into that possibility

and work with the community college system in North Carolina

and with the people who administer your centrally administered

program to see what we might be able to do.

Mr. SMITH. Yes, ma’am. And I should clarify for the committee.

The program is managed centrally by—administered at the local

level near where the department is located but certainly, I think

you’re right, it’s interesting and we can pursue that.

Mr. SOUDER. I want to—I have spent an incredible amount of

time on this issue on the border as narcotics chairman then last

fall we did so-called community hearings for 8 weeks in a row arguing about how we planned to do this policy and I’m an aggressive

border enforcement, aggressive English, aggressive secure I.D. but

struggling with the work permit question because Indiana, my district, would dry up and blow away right now if we actually ordered

that done but if we actually get—companies would just move to

Mexico—that—before losing their business to China—and working

this out is a huge challenge but I have been very troubled as we

get in to talk about how we would actually do work permits because most companies who are hiring illegals are not doing direct

job hires. It’s often day bidders for dry wall, motels increasingly

contract out their cleaning services, those cleaning services then do

temp services. Much of this is in the underground economy; people

who work as plumbers’ assistants who aren’t being reported as income in the first place.

Now if Congress somehow under pressure from the President in

the next 30 days would pass a work permit bill you are the agency

that would have to enforce this and there are all of a sudden

200,000 people here in North Carolina with work permits and you

are already telling me that over half of the people here that you

deal with in investigations are visa overstays. How in the world

without an incredible number of agents would you ever enforce

work permits?

And—And I don’t think we’ve even raised this subject.

38

I’m on the Work Force Committee and Subcommittee in Energy

and Work Force; I’ve never even heard anybody address this question because we’ve all focused on the border. But if your No. 1 challenge is visa overstays what—how would you do this? Are you—

Have you even been having an internal discussion at ICE in Investigations and in Detention and Removal of what you would do if

suddenly Congress in the next 30 days gives you 10 or 12 million

people with work permits with the promise to the American people

that it’s going to be a limited time period and once their permit is

over you’re going to deport them?

Mr. SMITH. I know that issue is of significant concern to Assistant Secretary Myers who at the headquarters level and policy level

has been looking into different scenarios of how we would support

the program and what challenges we would face potentially as a result of that. I have not been involved in any of those meetings but

can certainly pursue that for the committee. I think as——

Mr. SOUDER. Because that would in effect Federalize all the

crime. In other words, a visa overstay is a Federal crime, not a

local crime. A work permit overstay would be a Federal crime and

you would be dealing with hundreds of thousands. How many—Do

you do right now in investigations 500 a year.

Mr. SMITH. I don’t have that number available, sir, but I would

certainly——

Mr. SOUDER. Like how many investigations currently could you

even handle, and we’ll ask a similar question to Detention and Removal for the hearing record, because the scale of this would have

to be done exponentially and this would need to be calculated or

a budget calculation—I’ve seen all kinds of budget estimates but

never this question of work permit overstay or how you enforce it

because I have been talking to my RV manufacturers and others

and saying: Look, if you get a work permit here, you know, how

are the employers going to know if a person goes to North Carolina

from Indiana on the work permit; somebody has to track that because you could do—if it’s a 5-year work permit it’s 5 years in

North Carolina and 5 years over in Indiana that—how do we do

this? Because this potentially in your department—I mean, 200

people. My lands.

Mr. SMITH. As a law enforcement officer, sir, I certainly agree

that any movement in that direction significant consideration has

to be given to counterfraud measures; how we anticipate responding to the attempts to subvert the program.

Mr. SOUDER. Are coyotes a current priority because that would

become a bigger problem here, too. Coyotes would be the people

who put the packages together who recruit the people who come

across to provide the transportation from the border. A lot of the

businesses in the United States are actually willing to pay back the

people who—sometimes $8 to $12,000 for a full package into the

job site which the $8 to $12,000 which we have testimony from

Julie Myers as well as former Assistant Secretary Garcia, that was

$8 to $12,000 for a Mexican, up to $30,000 for someone from a Middle Eastern country; that’s all been testimony, not classified, that

would include the full thing, including an illegal green card and the

transportation and overnight to make sure he got in. Testimony at

a hearing recently in the Southwest suggested it was like $300 if

39

you got yourself to the border, $300 to $500 to get yourself to the

other side of the border and then sometimes you contract then,

sometimes then you have a separate agent who is giving you a

green card and providing you with a job and housing as you line

that up. Is that a primary part of your investigation right now, creating networks?

Mr. SMITH. Yes, sir, it is. And it is one of the areas that we’ve

worked I think very creatively in and that is following the money

trail which we have done for years in our drug investigations,

money laundering investigations but we’re now applying that to

our immigration, alien smuggling investigations, that sort of thing;

it’s been very effective. So following the money is key to any criminal activity and we’re certainly applying that in this area. I would

like to clarify one thing. I think I responded to the question

about—regarding special interest aliens saying that I believe or it

was my opinion that the majority of special interest aliens that we

encounter are visa over- stays. Not all of the individuals that we

encounter. I limit that to the special interest aliens.

Mr. SOUDER. Yes, sir. That was my understanding it was a special interest which is obviously the highest target but what we—

what my understanding is from our Washington testimony is a fair

percentage of others are also visa over- stays, often day-visit

overstays along the border, student visa overstays, vacation

overstays. Looking at the desk in Venezuela, looking at narcotics

issues in those areas that often they’re coming to Disney World and

we have to make adjustment. Are they really coming to Disney

World and then jumping visa or are they coming to Disney World?

It was amazing. One day at the Venezuela desk 40 percent of the

people that day coming for a visa had an invitation to an insurance

conference at Disney World and many were turned down but a

number of them came with kids and they were let in and they

thought they were really going to Disney World. Of course, you can

get kids for hire, too. It is a huge—And we have these people that

are literally in U.S. protection, is based on that visa desk to the

degree that they come in legally. Now in Mexico as Jay Leno says:

Just follow the person in front of you. So it’s a little bit different

type challenge but as we look at even the formal process that’s why

we get visa overstays, we’ve seen a drop in our college attendance;

we try to tighten this and it’s hurt us because many of these students from around the world who would go back home now are less

supportive of America in their countries because they’re not spending time here.

There are consequences if we tighten too close. On the other

hand, the visa jumps are a huge challenge to us right now and the

OTMs are the highest risk part of that. Any other questions?

Thank you very much for your time. Thank you for your willingness to come today and field our questions. We may have some additional written questions and obviously the members have some

questions about regional things that they would like to talk to you

about privately.

Mr. SMITH. Thank you very much.

Mr. SOUDER. If our second panel could come forward we’re going

to take a very quick break. My family is going to need to figure out

where they are.

40

[Recess.]

Mr. SOUDER. The subcommittee will come to order. We’re going

to try holding the microphone so that the people upstairs can hear

better and if each of the witnesses could do that, too, when you testify, if you hold that the feedback problem that we had, it will help

everybody hear better. Our second panel is the Honorable Alan

Cloninger, sheriff of Gaston County; the Honorable Michael Lands,

district attorney of Gaston County; the Honorable Jim

Pendergraph, sheriff of Mecklenburg County and Ms. Emily Moose.

As you heard as an oversight committee it is our standard practice

to swear in all of our witnesses so if you’ll each stand and raise

your right hands.

[Witnesses sworn.]

Mr. SOUDER. Let the record show that each of the witnesses responded in the affirmative. It would be really embarrassing if we

had to prosecute anybody here for perjury so—It’s a little interesting footnote, Mark McGwire would have been the third one in I believe. He didn’t want to talk about the past but in an oversight

committee that’s what we do, we talk about the past, and try to

figure out how to address the future. It took us—you’ll appreciate

this—3 days to serve his subpoena because he wouldn’t come voluntarily and he moved cities to try to avoid coming before Congress

to give testimony. Rafael Palmeiro isn’t being prosecuted for perjury, although he spent 2 months trying to—when he said he didn’t

use steroids and then we found out that he flunked his test. The

only reason he isn’t sitting in jail is that we couldn’t establish precisely whether he was on a steroid at the time that he said it or

whether the—because he only had to test and apparently that was

post hearing but hopefully we won’t run into that with sheriffs and

U.S. (sic) Attorneys and Ms. Moose so—but it makes our committee

interesting from time to time.

You’ve heard from our first panel and some of our concerns at

the Federal level and now one of the unique things that we get in

the field hearing is to be able to hear from people right on the front

lines who are dealing with this day to day in their home environments and at length which is really unusual today and we have

four Members of Congress here and I appreciate the North Carolina delegation being here and we look forward to each of your testimony. We’ll start with you, Sheriff Cloninger.

STATEMENT OF ALAN CLONINGER, SHERIFF, GASTON COUNTY

Mr. CLONINGER. Thank you, sir. On behalf of Gaston County,

welcome to all of you being here today.

Mr. SOUDER. If you can pick up your mic. One other thing I

should say, we have a clock for 5 minutes. You knew that the—

there is a 5-minute—it’s a take-down——

Mr. CLONINGER. Yeah. It’s——

Mr. SOUDER [continuing]. That we—in a field hearing we won’t

hold you close to it but it gives us some—some idea when we—particularly when we come to the South we do the 5-minutes for the

Southern drawl so we’ll be very flexible with that clock but it kind

of gives us an idea.

Mr. CLONINGER. I promise I won’t be that long-winded. Here in

Gaston County last year we booked 640 nationals from 45 different

41

countries into the Gaston County Jail. Last November I met with

Sheriff Pendergraph and we discussed the very issues that are

coming up today and at that time we discussed this program, the

287(g) program, and he informed me that he was in the process of

obtaining it with the help of Representative Myrick. I also talked

to Ms. Myrick and expressed my interest in this; that we were

going to wait until after Jim got it through to get it started. Then

in February I applied for the program and finished the application

and we—with the chairman’s permission I would like to deviate

from my statement to make a little announcement. Representative

Myrick, thank you for attending the hearing. Thank you because

as of yesterday the Gaston County Sheriff’s Office has been approved for the 287(g) program and we will be starting it within the

next 60 to 90 days. So I appreciate it.

We look forward to this partnership with ICE and I have to be—

I would be remiss if I didn’t compliment Jeff Jordan—he said he

was going to leave—the ICE agent from Charlotte. With his help

and guidance we were able to do this. So thank you. It will make

a difference here in Gaston County because I understand from

Sheriff Pendergraph it has already made a difference in Mecklenburg. And so in that deviation I’ll just drop on down because I was

talking about needing the program and I’ve already got it. But the

two issues that remain after that I think we have to be aware of

is the cost and expense. I don’t know what the cost and expense

of operating a program in Gaston County would be and I haven’t

asked for any money there yet. We’ve got to see it first before that.

But there may be a cost and expense that you may—not may but

you should help us with because it is our taxpayers who are helping enforce this Federal law.

Also the other side is the jail side. In Gaston County right now

our jail is pretty much getting full and when we start getting these

folks we’re going to have to hold them; hold them somewhere. So

you may look at ways, as I said in my statement, of maybe helping

us fund expanding the Gaston County Jail so we have more bed

space for these people; how to get the space locally. We don’t have

some other jail that you can use. We will need financial assistance

particularly with the detention side because after talking with

Sheriff Pendergraph his numbers are rather high already. So those

two areas I think will be something that we will come back to you

in this partnership with you which will do great good in this county

and I think across the country. It’s not only the illegal alien issue

but the Homeland Security issue we have to be aware of so thank

you for partnering with us and I’ll turn it over to Mr. Lands.

[The prepared statement of Mr. Cloninger follows:]

42

43

Mr. SOUDER. Thank you very much. Mr. Lands.

STATEMENT OF MICHAEL LANDS, DISTRICT ATTORNEY,

GASTON COUNTY

Mr. LANDS. I am Michael Lands. I’m the elected District Attorney

for Gaston County and I’m responsible for prosecuting all the

criminal cases in Gaston County. Thanks for the opportunity to

come and address you. What are some of the issues and problems

that illegal immigrants charged with criminal offenses cause for a

local court system.

Well, one is the issue of identity. Is the person arrested who he

said he is. Without proper identification and birth dates it’s hard

to know a defendant’s true identity. Jails are not big enough to

hold all the immigrants arrested without valid identification. We

have numerous cases where an arrestee uses another person’s

name and does not appear in court. The warrant for arrest goes out

in the original name and it’s hard to know whether we’ll ever arrest the true offender in those cases. Another identity issue is the

fact that many illegal immigrants have several last names or hyphenated names that make it difficult to run record checks to see

if an immigrant has a prior criminal record. And a final identity

issue occurs because illegal immigrants move around so often it is

difficult to know if a conviction in one State is for the same defendant charged in this State.

A different issue is the fact that illegal immigrants will owe the

person who helped them get into this country and that may mean

that they get involved in criminal activity such as transporting

drugs for them. Next you have the issue about the fact that increased illegal immigrants in the State impact the State court system economically.

It means the jail is overcrowded, it means that there needs to be

more State-appointed attorneys, it means there needs to be more

translators for the court system. And then there’s what I call the

psychological issue, particularly when you’re dealing with drunk

driving deaths. All drunk driving deaths could be avoided if there

is no alcohol consumption by the driver. Everybody understands

that.

When an American-born drunk driver kills someone in a crash

the public feels the death could have been avoided. I believe the

public has greater outrage when an illegal immigrant drunk driver

kills because people believe the death would have been avoided.

They believe if the illegal immigrant was not in this country they

would not have drank and driven and killed in this country.

And a final issue is the problem of the illegal victim of crime.

They are targeted by criminals who know the illegal immigrant

will not report the crime to the police.

If someone is actually charged in that case then they don’t cooperate with the prosecutors in order to prosecute the person and

so then this—these actions allow criminals to go free and waste

valuable court resources. Most of this non-cooperation can be

traced to a fear of deportation and a cultural distrust of police.

On the issue of the 287(g) training I believe it certainly would

help local law enforcement to be able to determine who was an illegal immigrant and be able to start the process of deportation. It

44

would be a great help to local law enforcement to be able to get

a known immigrant criminal out of the community without having

to wait for an overworked ICE agent to begin the process. As long

as the Federal Government does not make the 287(g) authority an

unfunded mandate for local law enforcement agencies, then I believe more and more local agencies may seek to have their officers

trained. North Carolina also needs an immigration court here to be

able to timely and effectively have deportation hearings for illegal

immigrants found in North Carolina.

But ultimately—and I mean no disrespect—this is a Federal

problem. You have to address it. Illegal immigration is Federal—

is a Federal Government problem. Why are we talking about having 287(g) authority? Because the Federal Government has not employed enough ICE agents to do the job. And what is the Federal

Government’s policy on deportation? That’s going to have to be

communicated to the officers who are trained under the 287(g) authority. For instance, as I understand any illegal alien in this country would be subject to deportation but it seems like the policy of

the Federal Government is to wait until they create—commit a

State crime and then determine if that State crime is serious

enough for deportation before any action is taken. If a local law enforcement agency has 287(g) authority is everybody going to be

equally deportable if they determine who they are? And that’s

something you’ll have to decide.

Finally, it strikes me as strange that we’re having all of this discussion about enforcement and giving authority for deportation and

what crimes will be deportable when we all know, and this was

stated earlier, we go through all the work of deportation, send

them to their home country and 2 weeks later they’re back. So the

Federal Government is going to have to address that issue. Is the

Federal Government going to decide that’s going to be an offense

that they’re willing to imprison people over for substantial periods

of time or are we just going to go through a revolving-door deportation process again? Thanks for this opportunity to address you and

I appreciate it.

[The prepared statement of Mr. Lands follows:]

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46

47

48

Mr. SOUDER. Sheriff Pendergraph.

STATEMENT OF JIM PENDERGRAPH, SHERIFF,

MECKLENBURG COUNTY

Mr. PENDERGRAPH. Thank you. Thank you for the opportunity to

speak to you today and Sheriff Cloninger had a couple of minutes

left over, I may need those, but please don’t be too hard on me. My

name is Jim Pendergraph, Sheriff of Mecklenburg County, North

Carolina for the past 12 years. I have been in law enforcement for

the past 36 years. First, again, let me express my appreciation for

the opportunity to appear before this Commission on Empowering

Local Law Enforcement to Combat Illegal Immigration. I probably

will never have another opportunity to address Members of Congress on this very serious and controversial subject. It is with all

due respect that I make my comments, so please excuse me for

being blunt.

I strongly support the Office of the President of the United

States and President Bush. However, I, and many others, strongly

disagree with President Bush’s policy, or lack of, on illegal immigration. The Congress of the United States has let us down by the

lack of action on the illegal immigration issue for decades, leaving

those of us responsible for local law enforcement to deal with not

only the fall-out of the criminal element, but the ire of the public

for their perception of our inaction on a Federal issue.

Mine is one of the few sheriff’s offices, and thank goodness Sheriff Cloninger has his approved, in the United States that has

signed a Memorandum of Understanding with Immigration and

Customs Enforcement for the 287(g) program. After extensive

training, 12 of my deputies are certified under this program to

screen illegal immigrants arrested in Mecklenburg County. This

certification gives us access to ICE data bases of fingerprints and

photographs, which is the only real method of positively identifying

a person and their immigration status. Most law enforcement agencies in this country are trying to identify the legal status of an individual by telephoning the Law Enforcement Support Service Center in Vermont and submitting the name of a person in question.

This is virtually worthless and a waste of time. I know it is shocking, but people lie to law enforcement about their names and use

names of persons who are in this country legally. This past February I had lunch in Washington, DC, with a group of chiefs and

sheriffs from the largest law enforcement agencies in the United

States.

I informed one of the chiefs of police of my recent agreement with

ICE to screen illegal aliens and deport them if they fit the criteria.

His comments to me were: Congratulations and best of luck. I envy

what you are doing but I’d have to turn in my resignation the same

day I signed such an MOU. It is not politically correct to cross local

business that uses the cheap labor. Ladies and gentlemen, this political correctness will eventually be the downfall of this country if

someone doesn’t wake up.

Mr. SOUDER. I’ve tried to be a little flexible. We do not have demonstration support. You are invited to observe; not to participate.

It’s not a statement whether I agree or disagree with that but we

need to have order in the hearing.

49

Mr. PENDERGRAPH. I didn’t mean that.

Mr. MCHENRY. You did mean that.

Mr. PENDERGRAPH. Well, I didn’t mean them to do that.

My office started the immigration screening for persons arrested

on May 1, 2006. My jail population for illegal immigrants has

grown from 2 percent to over 15 percent in the last 3 years. We

have so many new arrestees to process, we have not been able to

process the 350 inmates suspected of being illegal, that were already in the jail on May the 1st. As we suspected, the vast majority

of immigrants arrested and processed are in this country illegally.

Infrequently, we find a legal resident arrested, but they are rare

since they are very protective of their legal status. More than half

of the screened illegals have detainers for deportation placed on

them immediately, either for past removals from this country or for

the seriousness of the crime they are accused of. The first week we

were processing, we came across an individual who had been removed from this country 22 times. His last deportation was from

the Arizona Department of Corrections back to Mexico, and he was

arrested a short time later in Charlotte for trafficking methamphetamine. Again, the majority of the people detainers are

placed upon have been deported multiple times. The ones not held

for deportation are cited for an immigration hearing in Atlanta

which they—most of them never show up for any immigration

court and that’s why we need one in Charlotte.

So many illegal immigrant criminals have been identified

through my 287(g) program, it is causing me a jail space problem.

One of the agreements with ICE in the beginning was for their removal of the identified offenders as soon as possible. I don’t think

even they foresaw the numbers we would be dealing with. The Removal and Detention Division of ICE is overwhelmed by the numbers we are generating for removal in Mecklenburg County alone.

In the last year I have come to know and work very closely with

the ICE employees in my area. I suspect the public would be outraged to know how few ICE agents are assigned to North Carolina.

Assistant Special Agent in Charge Jeff Jordan, and SAC Ken

Smith that was just here from Atlanta, have literally bent over

backward to make this 287(g) program work. They are as dedicated

and professional people as I’ve ever worked with in my 36-year law

enforcement career. However, they are as frustrated as I am with

their lack of resources, and the frequent dealings with the same

people they just removed from this country only a few days prior.

I attended a meeting at the White House 2 months ago on June

21st with Attorney General Alberto Gonzales and ICE Director

Julie Myers. The IACP, Major County Sheriffs’ Association, National Sheriffs’ Association, Major City Chiefs and other groups

representing local law enforcement, stressed that border security

was the No. 1 issue that needs to be addressed by Congress. Another issue that I brought to the Attorney General’s attention is

the common practice by State and Federal prosecutors to dismiss

criminal cases if an illegal immigrant agrees to voluntary removal.

The illegal criminal immigrants know our system and how it works

better than most of us do. This in effect wipes the slate clean for

a criminal, gives him or her a free ride home at taxpayer expense

to visit family, and then begin the journey back to the United

50

States to victimize other citizens. Think of the frustration we feel

when a group of illegals leaves my jail for deportation and they

smile and say: We’ll see you next week. One of the main purposes

for our meeting with the Attorney General was for him to promote

the 287(g) program and to request everyone to become part of it.

Most Chiefs of Police are not interested in this program for various

reasons; the main one being it is not politically correct and is

viewed as a Federal problem. Most sheriffs, because they are elected, would like to be part of the 287(g) program but ICE administrators admit they have nowhere near the resources to support that

many MOUs. ICE agents in North Carolina could not handle the

workload if one-fourth of the North Carolina sheriffs signed an

MOU with ICE for the 287(g) program. I can tell you for a fact that

had it not been for Representative Myrick that I talk with more

than my own sister I probably would not have my program operating now. She’s been wonderful helping me with my problems.

I firmly believe we are just seeing the beginning of problems surrounding illegal immigration. This country was built on laws and

I took an oath many years ago to enforce the law and protect our

citizens from all enemies, foreign or domestic. I take that oath seriously.

The average citizen has no idea what illegal immigration issues

costs us in infrastructure tax dollars. These include the criminal

justice system, hospital emergency rooms, County Departments of

Social Services, schools, etc. A recent report from the Mecklenburg

Health Department stated that the County spent $400,000 last fiscal year for interpreters for people who could speak little or no

English that were seeking health services. The County’s Health Director predicts that in less than 5 years, fully 20 percent of the

children starting school in Mecklenburg County will be children of

illegal immigrant parents with little or no English skills.

I have nothing against immigrants and this country was built

with and by immigrants looking for a better way of life. The flood

of illegal immigrants crossing our southern border expecting citizenship and all the privileges that come with it is a slap in the face

to every other immigrant who went through the legal process and

did it the right way. Even though I have great concern for the flood

of illegals coming here looking for a better way of life, my bigger

concern is for those crossing our porous borders looking to cause

harm and commit acts of terrorism against the United States. This

is a serious Homeland Security issue.

I have just scratched the surface of issues we face every day just

dealing with illegal immigrants committing crimes in our community. Thank you for the opportunity to testify before this Commission and may God bless America and help Congress come to a

quick resolution on this issue.

Thank you.

[The prepared statement of Mr. Pendergraph follows:]

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Mr. SOUDER. Thank you very much. Ms. Moose, it’s great to hear

from you directly. Sometimes I think—you can pass that microphone.

Mr. PENDERGRAPH. Excuse me.

Mr. SOUDER. Sometimes you wonder—people say that we’re

doing all of this illegal immigration stuff because it’s a political

year and you always—anybody who is in political life people wonder about your motives, whether you just say one thing and do another, but Congresswoman Myrick started to buttonhole members

about your case immediately. You just need to know it wasn’t just

back here and it wasn’t just that she was moving a bill. Quite

frankly to be honest I heard probably more about your case than

I wanted to hear about your case that—because we all have variations of this but it was such an emotional thing in how it affected

her that she immediately started talking to a number of us, introduced a bill, worked that bill and had a passion with it and that’s

why I say it’s of special interest to me because I—I heard about

your case so many different times in a short form that I’m looking

forward to hearing from you directly so we can get it into the official record of the United States what happened, what it means at

a personal level in this rather than just the hypothetical level with

lots of numbers and in general. So thank you for being willing to

share a very difficult and personal story with us.

STATEMENT OF EMILY MOOSE, MOTHER OF SCOTT GARDNER

Ms. MOOSE. Thank you. The Charlotte Observer headlines on

July 20, 2005, read simply: Scott Gardner did not have to die. My

name is Emily Moose and following Sheriff Pendergraph here I’ve

been a mother for 35 years and a grandmother for 7 years. But

more importantly who was Scott? Scott Gardner was a husband, a

father, a son, a brother, a teacher, a coach and a friend. He taught

and he inspired. He was a devoted husband and a father and he

was definitely the anchor in his family. Scott was a tall, good-looking fellow with blonde hair and intense brown eyes. He was a

gentle giant with a soft voice. He loved his children with abandon

and the game he loved was baseball.

He was steadfast and loyal, freely giving unconditional love.

Scott was a proud man. This pride was in who he was and what

he stood for. Scott was a devoted Christian. His evangelism was a

live by faith example which drew people to him and in this drawing

he made clear his faith in his God and his acceptance of Christ as

his personal Savior.

On July 16, 2005, Scott and his beautiful wife Tina were traveling on Highway 130 in Brunswick County, North Carolina on their

way to the coast for a long overdue family vacation. Their two

small children were safely secured in the back seat of the family

station wagon and all of a sudden out of nowhere they were hit

head-on by a truck. Nine hours later my precious son lost his life

and his wife Tina was seriously injured. Tina remains in a vegetative State today. She is being cared for in a nursing facility in

North Carolina. Scott Gardner was 33 years old and his wife Tina

is 32.

It has been 13 months since that horrible day and our family has

never overcome this nightmare. As the time goes on our pain and

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our loss grows greater. Our questions as to why have never been

answered. Our disbelief that something like this could happen in

our country and our frustration with a failed and broken system

that cost us the ultimate price is mounting. Since my son’s murder

I have studied and I’ve read, and I suffer the personal pain of the

tragic ramifications caused by the illegal invasion of my country.

In the last several months I’ve travelled to Raleigh, I’ve been to Columbia, I’ve been to Washington. I have written and e-mailed thousands and thousands of letters, made hundreds of telephone calls

looking for answers to this deadly problem.

There were four young men in the truck that day that struck

Scott and Tina head-on and every one of them were in this country

illegally. After the crash happened, in spite of my babies crying and

my son screaming to get out of the car, these men fled the scene

in order to elude the police. They removed their clothing and they

buried it in order to escape possible DNA that might prove who the

driver of that truck was. They all claimed not to speak or to understand English even though a lot of people in their own community

said that they do speak and understand the language. Investigators

later found out that the truck that was involved in this accident—

or accident—crime was owned by another Hispanic fellow in their

community. This particular man owns 30 such vehicles. He provides little to no insurance on these vehicles and he leases them

to undocumented and unlicensed drivers. The man that was driving the truck was described to me by his sister as a good man. This

good man ignored the screams of my children and my son and ran

away from his car. After the fact our family learned that man had

been arrested five times in 5 years prior to that horrible day. One

of the prior charges resulted in another head-on collision.

The man that murdered Scott crossed into our country on our

southern border in Arizona in 1998 per immigration officials. He

travelled to Michigan at that time and obtained a driver’s license

on June 30, 2000. Fifteen days later he was charged with drunk

driving in Monroe, Michigan. Authorities in Michigan notified Immigration and he was sent back to Mexico. Six months later in

January 2001, the U.S. Border Patrol caught him again and again

they sent him home. He was back in the States again 2 months

later in March and he moved to North Carolina to work as a roofer.

In February 2002 he was arrested for speeding 88 miles an hour

in a 55-mile-an-hour speed zone and tests showed that his blood alcohol level was twice the legal limit. That DUI was still pending

when 3 weeks later he was nabbed again for DUI. He was sentenced to 20 days in jail. In the summer of 2002 this man skipped

his court date for the third offense and the statistics tell us that

27 percent of drunk driving charges against Hispanics are dismissed because they don’t show up for court. You see, if you don’t

have a conviction your record is clean.

In late 2002 he was busted again. This time he was sentenced

to 7 days in jail and supervised visitation (sic). By now this fellow,

still in my country illegally, had earned himself a felony for DUI,

but if you don’t have any records you don’t serve detention. In January 2004 he again was charged with DUI and his blood alcohol

level was three times the legal limit. Results of that arrest, 30 days

in jail and supervised visitation (sic). A spokesperson with the DeVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
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partment of Homeland Security says that she couldn’t explain why

this particular repeat offender was not in their data base.

On July the 16th after a whole day of drinking and just having

fun this illegal took my son’s life and he has darkened the life of

Tina forever. For all intents and purposes he has orphaned my two

grandchildren. One Charlotte reporter last month wrote that he,

however, was not an example of the problems of illegal immigration. This article also stated that most illegals respect the U.S.

laws. I believe that the facts speak for themselves. This country

has 630,000 criminal illegal felons or a full 29 percent of our total

population in prison today at a cost annually to taxpayers of $1.6

billion. Recent reports tell us that 25 American citizens die every

day in this country at the hands of an illegal. In addition to those

horrible numbers 624,000 illegal fugitives are hiding in my Nation.

The Latino community leaders have told us that extreme culture

differences and the lack of knowledge of the laws of this country

are the reasons that this death rate is spiraling upwards but our

border is still open as we speak.

We have all read and heard of the economic devastation that this

invasion is causing the American taxpayer.

Experts in this area are reporting to us crippling numbers. Our

family’s personal experience with the unfairness of this financial

outrage: Scott and Tina were air lifted and treated at a medical facility in Wilmington, North Carolina that deadly day. Two passengers in the truck were also treated for their injuries at this

same excellent hospital. Our family received a bill in excess of

$89,000 for the 7-hours of treatment that my son received there.

The other two people left this hospital owing no money and now

have vanished into the fabric of my country. We are a Nation of

laws and our laws are not just for some but for every single person

here. The statement that most undocumented respect the U.S. laws

is a joke. The mere fact that they smuggle themselves into our

home, they consume our resources, they kill and hurt our citizens,

they protest and demand more rights than they give their victims

is unacceptable and it is a crime.

As this Nation is fighting a war on terror, Homeland Security

should be the No. 1 priority of every citizen and every government

official, but we still have that open door. We have immigration

laws on our books already and for decades they have not been enforced. Because of the lack of enforcement Scott and millions of

other innocent citizens have lost their lives. I believe that the cost

of human life is just too high a price to pay for cheap labor. Our

communities and our highways wreak of more terror than the war

zones do in Iraq. We must put a stop to this misery.

We have to protect this Nation. We must give America back to

its citizens. A Nation in chaos is still a governed society, it’s just

by the wrong people, for the wrong purposes, and the results are

disastrous. No family should have to suffer the preventable, unacceptable heartache that this American family is suffering because

our Nation is not enforcing our laws. I want to thank you for asking me to be here today and one more comment. I think that if the

287 program had been in place in Brunswick County, North Carolina my son would still be alive.

[The prepared statement of Ms. Moose follows:]

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Mr. SOUDER. Thank you. Vice Chairman.

Mr. MCHENRY. I’ll be happy to yield to Congresswoman Myrick.

Mrs. MYRICK. I want to thank you very much. The one thing I

want to say about you is that you have turned tremendous, tremendous grief into a huge advocacy that is helping lots and lots of people and we thank you for that because what you’re doing is unbelievable research and speaking and literally changing this fabric

we’re talking about and thank you for doing that and I know you’ll

keep it up because you’re committed and that’s why we’re here

today is to try and figure out what we can do to stop this so other

people don’t go through what you and your family are still going

through. We can’t relate because we haven’t been there. Sheriff

Pendergraph, I wanted to ask you a question. How often do you see

returns after deportation? What would you say your percentages

are.

Mr. PENDERGRAPH. That’s hard to estimate and a rough guess

would be 10 percent. The quickest we’ve seen is 3 days but frequently it’s a week and, in fact, we don’t run into them unless they

commit another crime.

Mrs. MYRICK. I understand that.

Mr. PENDERGRAPH. They could cross back into this country and

not commit a crime and they wouldn’t come in contact with my

287(g) program or they could be in another surrounding county or

another part of the country; we wouldn’t know. The ones that we

see—the small percentage that we see return, have come back,

have been rearrested for some reason.

Mrs. MYRICK. For criminal reasons.

Mr. PENDERGRAPH. Yes.

Mrs. MYRICK. That was my point.

Mr. SOUDER. Sue, might I interrupt you for a technical question.

Mrs. MYRICK. Yes.

Mr. SOUDER. I don’t mean to disrupt your flow of questioning.

Because we have—we have—one of our most difficult things in

drug intelligence and in now Homeland Security is we collect all

kinds of data and it’s very hard as a member of the Homeland Security Committee and chairman of this committee to figure out how

this is used. When you get a case, Congresswoman Myrick just

asked you what seems to be in the computer age a not hard question but we don’t generally get the answer no matter who we ask,

so I wanted to ask you a technical question of what happens; that

when you get a—an illegal who has been convicted and you said

one—the least is 3 days, do you—who do you report that crime to?

What centers would get that information? Would it go into the Department of Homeland Security? Does it go to your regional Law

Enforcement Center? Where does the raw data go? Does it go beyond your county.

Mr. PENDERGRAPH. Right. We fingerprint everyone now that has

not declared that they’re a U.S. citizen and tells us on the initial

interview that they are not U.S. citizens or at least they’re not born

in the United States. They’re fingerprinted through the ICE data

base and the Federal Government has wonderful data bases and

information systems, they’re just not sharing them with anyone

that’s not affiliated with this program. They have a photo recognition system, we fingerprint and photograph and within 2 minutes

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we get the information back. If they’ve ever had contact with Immigration anywhere in the United States whether it’s on the border

or another State, California, once we finger- print someone and

find they’re a return that information does go to ICE. They pick up

on that and it also goes to the U.S. Attorney, Western District of

North Carolina prosecution, as a return. So we store that and we

are keeping very specific records and we do keep good data. I just

don’t have that in front of me right now. But we are keeping good

information. The problem is if you don’t have that program and,

again, thank goodness that Alan is about to get on board with this.

We can keep statistics that no other agencies can do right now.

Mr. SOUDER. So with your fingerprint program in your

county——

Mr. PENDERGRAPH. Yes.

Mr. SOUDER [continuing]. It goes in and you can now tell because

the names are still a problem; they’re almost irrelevant——

Mr. PENDERGRAPH. The names are irrelevant.

Mr. SOUDER [continuing]. And the false green cards and Social

Security numbers are more or less irrelevant and without a fingerprint it doesn’t work. Now let me ask something that came up in

the district in Winston-Salem. There a local prosecutor and sheriff

said one of the problems when you pick up somebody on—on the

road that the police cars themselves may not have a fingerprint

machine in them with which to read the I.D. which means you’re

back to the name again unless the person is hauled to us at a central place. Can you explain the challenges of how—what funding

challenges we’re looking at because fingerprints are the only way

to do this but if we don’t have agencies that can read it how does

that work.

Mr. PENDERGRAPH. My—I’m the wrong person to ask technical

questions. I can’t turn my computer on without something happening to it but a fingerprint data transmit, it takes a lot of space on

a server. That is capable—you know, that is a possibility. It’s very

expensive to transmit fingerprints. Ultimately I’d like to see that

done but you can take them anywhere in this State and fingerprint them and if you don’t have that ICE data base like I have

in my jail in my processing center you won’t find out if they’re here

illegally or what their immigration status is.

Mr. SOUDER. But if somebody had been picked up at the spot on

the DUI and the policeman in the car, would they have had to

bring the person into the jail or had them in the——

Mr. PENDERGRAPH. Yes. Yes. They can’t do that from the vehicle

right now.

Mr. SOUDER. Thank you.

Mrs. MYRICK. Would you know whether that’s possible to do from

a vehicle simply because you’re saying it’s very—the data base is

so big.

Mr. PENDERGRAPH. We are—We just purchased a mobile command center to use for drunk driving checkpoints——

Mrs. MYRICK. OK.

Mr. PENDERGRAPH [continuing]. And one of the things that we do

is—we have is an AFIS system—an AFIS system and we are trying

to work out the technical problems of finger- printing drunk drivers

and transmitting that data back to my data base; it goes to the

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State and FBI. And it is a very difficult issue—expensive issue

through microwave technology to transmit the data that you need

to transmit a fingerprint.

Mrs. MYRICK. So we would be looking at a lot of money to try

and have something in the cars——

Mr. PENDERGRAPH. Especially—We have mobile laptop computers

in most——

Mrs. MYRICK. Right.

Mr. PENDERGRAPH [continuing]. Patrol cars now but we don’t

have access to fingerprints that we can check in the cars.

Mrs. MYRICK. I wanted to ask you about what additional costs

this has brought to your department. Have the costs outweighed

the benefits; benefits outweighed the cost? You know, where do you

stand and what is it that we need to be doing along those lines.

Mr. PENDERGRAPH. Well, it has brought added cost and some

sheriffs’ offices probably wouldn’t be able to afford what I’ve done.

I house a lot of Federal inmates and I have a contract with the

U.S. Marshals’ Office that they pay us to have inmates and we

have as everyone else has an excess of unprojected revenue coming

from the Marshals’ Service that we were able to fund this program

with and we’re having—even though ICE paid for the equipment

and the computer system that they put in for me we’re having to

pay for the DSL and the information systems lines that go back to

them. And then I have 12 employees that after this year that the

County is going to have to pick up the funding for their salaries

and benefits so—but any person we identify that’s a criminal, and

we’ve found murderers, drug traffickers and everything else

through our system, is worth whatever cost it is to get those people

out of our community. The frustrating thing is that we can look for

them back because there is nothing there to stop them from coming

back.

Mrs. MYRICK. Sheriff Cloninger, since you’ve just gone through

this Memorandum of Understanding process with 287(g) where do

you see problems or challenges that we need to straighten out that

would make it easier, simpler, quicker, whatever it may be, for

other agencies to go through this process, because I understand it’s

a bit cumbersome.

Mr. CLONINGER. Well, the application process wasn’t difficult in

my opinion but it’s the fear—I’ve talked with many sheriffs in this

area—because you have to look at it another way. When Sheriff

Pendergraph started, well, that pushed the illegals away from

Mecklenburg County.

Mrs. MYRICK. So they go to other counties.

Mr. CLONINGER. The funding is in Mecklenburg County so

they’ve come to Gaston, Cabarrus, Union. And I’ve talked with

other sheriffs and they have fear of the cost and I think that’s—

it’s—money runs a lot of things but like Sheriff Pendergraph said

why do we want a murderer in our community just because it costs

us a few thousand dollars to have them out of our community; you

have to make a determination of what the—the proper expenditure

to fund and the other sheriffs that I’ve talked to want to come on

board but they are afraid of the cost and expense. I don’t know

what the cost and expenses are. Like Sheriff Pendergraph I’m presVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
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ently able to house some Federal inmates that will help deter some

of the cost but——

Mrs. MYRICK. Well, if both of you could—if you could think about

the fact of how we could simplify this process from the standpoint

of not just the cost but I’m talking about the actual process of getting on board, I would appreciate it if you would share that information because——

Mr. CLONINGER. I’d be happy to.

Mrs. MYRICK [continuing]. Because we do want to encourage

more people to do this. Sheriff, did you have a comment.

Mr. PENDERGRAPH. I guess one comment, and trying not to be too

critical in meeting with the Director in Washington, Julie

Myers——

Mrs. MYRICK. Right.

Mr. PENDERGRAPH [continuing]. I think that the information that

the Attorney General and some of the folks in Washington get is

so sanitized and cleaned up before they get it, they have an opinion

that things are working well——

Mrs. MYRICK. Um-hum.

Mr. PENDERGRAPH [continuing]. And I had to inform them that

it is not working well; that it’s a very difficult process to get involved and, again, had it not been for you I wouldn’t be operating

this now because I applied, never heard anything and there were

roadblocks and reasons we couldn’t do things every turn I made,

and I know a sheriff in Tulsa, Oklahoma that has tried for 3 years

to get a telephone call returned from ICE about this program and

until I told her about it he didn’t get a telephone call returned.

There’s a frustration across the board with there’s a stonewall

somewhere that somebody is saying: I don’t want you to do anything about this. That’s just the feeling.

Mrs. MYRICK. Well, that’s why the chairman is here today to—

to figure out what it is that we can do to change this and I appreciate all of you testifying. I—Also, Mr. Chairman, we had 200 people here today. You can see the interest in our community for this

program and I did want—this is a little aside but I know one of

our State senators is here, Robert Pittinger, and he just told me

that the bill that they have been working on in the State legislature which he authored in the Senate and it passed through the

House to stop issuing licenses in North Carolina with taxpayer I.D.

numbers, the Governor hasn’t signed it yet but it will go into law

Monday if it isn’t signed. So I just wanted to pass that on because

that’s one of the reasons we figure we’re getting so many people in

here, Mark, in North Carolina because it’s so easy to get driver’s

licenses here compared to other States. You don’t have to prove

who you are. So I just wanted to put that in the record and thank

you all.

Mr. MCHENRY. Thank you all for agreeing to be here. I think it’s

important that we hear from folks that are affected by illegal immigration and let’s say this. Let’s make sure that we’re very clear

about that there is no misunderstanding here. When you—When

you come to this country illegally you’re breaking the law to get

here.

That’s to start your process of being a part of America. You break

the law to get here. Once you’re here illegally you’ve already broVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
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ken the law once so it’s not much of a leap to break the law again.

So the condition I would make is that if you break the law to get

here you are not going to respect the law once you’re here. What

we’re—we’re discussing here today is not simply illegals in the

community but those illegals that are committing horrible acts and

encounter law enforcement. Personally I have not had any problem

with my sheriff, Alan, because I haven’t broken the law and so I

don’t have opportunity to encounter you, thankfully.

Mr. CLONINGER. That’s good.

Mr. MCHENRY. So I want this to be clear to the media and to the

public at large, we’re not anti-immigrants.

Mrs. MYRICK. Right.

Mr. MCHENRY. We’re talking about illegals in the community;

not just illegals in the community but those illegals that commit

acts such as drunk driving, such as drug trafficking, such as assault and battery, or worse and so let’s talk about this, this 287(g)

program. This is fantastic feedback we’ve gotten from you—from

you, Sheriff Pendergraph, and this is a good indication of what

we’ll be going through in Gaston County because of the leadership

of Alan Cloninger. We’re very grateful for that. This is a wonderful

program, a great opportunity for Gaston County. And what I’ve

found from Lincoln County which I also represent is the sheriff

there has a desire to be involved with the 287(g) program because

you are so effective in Mecklenburg County that they’ve seen an

enormous rise in illegals committing crimes in Lincoln County because they don’t want to be in Mecklenburg County——

Mr. PENDERGRAPH. That’s good.

Mr. MCHENRY [continuing]. Because you’re effective.

Mr. PENDERGRAPH. That’s good.

Mr. MCHENRY. That is fantastic. So this coordinated effort has

to go across county lines and we have to have the resources in

place. Now how long—Sheriff Pendergraph, how long have you had

the program in place.

Mr. PENDERGRAPH. We started processing May the 1st, this year.

Mr. MCHENRY. May the 1st. So since May the 1st your 12 deputies, how many folks have they encountered.

Mr. PENDERGRAPH. Around 1,100 that have been arrested that

we have processed and over half of those have been detained for

deportation immediately because of some prior deportation or some

felony that they have—If I might make an example, this lady got

arrested Monday. She had been in this country 30 years from Trinidad. She has 18 aliases, seven Social Security numbers, five dates

of birth and she’s been arrested in five different States for

felonies——

Mrs. MYRICK. Good heavens!

Mr. PENDERGRAPH [continuing]. And we’re the only ones that

have picked up on her and she is detained for deportation right

now. And I’ve got multiple examples of the same thing and they’re

in every county in this country, I can assure you.

We can find it because we have the 287(g) program.

Mr. MCHENRY. That is amazing. Absolutely amazing.

Mr. SOUDER. Why wasn’t she in the data bases.

Mr. PENDERGRAPH. She was. She was in the ICE data bases

but——

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Mr. SOUDER. But local law enforcement didn’t have a way to get

to the ICE data bases.

Mr. PENDERGRAPH. No. Huh-uh.

Mr. MCHENRY. So this is a question linking Federal data with

State and local law enforcement.

Mr. PENDERGRAPH. Right.

Mr. MCHENRY. This is not—This is absolutely frightening what

you just told me and we’re talking about illegal immigrants; we’re

not even talking about terrorist plotters. This is absolutely amazing. Alan, do you have a comment.

Mr. CLONINGER. Well, I think what you also have to look at,

there is another element out there, child molesters that we have

to identify also. We have—just those in our country who are molesters, we’re having difficulty tracking them down.

Mrs. MYRICK. They can’t hear you, Alan.

Mr. CLONINGER. Excuse me. I’m going to yank this out of here

in just a minute because——

Mr. SOUDER. Snuggle close. We won’t make any Ricky-Bobby

kind of——

Mr. CLONINGER. That would be a good idea. But we’ve got the—

the child molesters that we have to arrest—two sheriffs—and we

have difficulty keeping up with those citizens that are here legally.

So the illegal ones that are roaming across the country we have to

worry about those also. So it’s just not somebody to deal with the

DUIs. We have to be aware that we have to identify those people

who are preying on our children also. So it’s so important that—

and it comes down to money if the funding is there because we’re

going to push them out of Gaston County into York County and

Cleveland County and Lincoln County. It’s got to be that type of

way across the country, push them all the way across the border.

Mr. MCHENRY. Well, I see the sheriff of Rutherford County, Philip Byers, is here, it’s a county I represent, and based on conversations with him he foresees it affecting Rutherford County which is

two counties over from us.

Mr. CLONINGER. That’s the reason I worked so hard to get it here

with you all’s help because I knew when Jim started it, and Jim’s

program is an excellent program; we’re going to model ours after

his, but that was the effect we were going to have in Gaston County and to protect Gaston County I’ve got to have it. I believe all

the other sheriffs feel that way also.

Mr. MCHENRY. District Attorney Lands, in terms of your case

loads do you have any statistics about illegals coming through the

Gaston County Courthouse.

Mr. LANDS. No, sir, I don’t have any statistics on that, and I

think it needs to be said and I think we all know illegals are not

the only ones committing crimes. There’s certainly plenty of crimes

by American-born citizens so that’s—that’s there but it just seems

like the illegal stands out because you can very easily start out

with it being the language problem. I mean, I can deal with, you

know, meeting people in the public with five no operator’s license

by American citizens but the time it takes to try to communicate

with someone who is not speaking English with you and trying to

understand that and trying to communicate what you need to do

in that situation, you—it just stands out more. So it just seems

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that it’s there and it creates a greater problem. But there is no

question about the fact that—that the numbers are increasing. I

don’t think there is any question about that. And, as I said in my

written statement, it has a negative impact on the court system

when you have to use all your resources in trying to deal with people who are the victims of crime and you send out investigators to

try to reach them and trying to get them to come in and they won’t

come in and you’ve got their children who have been molested and

the parents won’t bring in the kids to talk with the prosecutor to

try to prosecute the case because the fear is they’ll be deported or

the fear is that the minute they do anything then their family back

home can be injured or they’ll be injured and the crime problem is

just there, it’s an undergrowth and it’s increasing.

Mr. MCHENRY. Well, additionally, Sheriff Pendergraph, you mentioned—I asked this question to the agent from ICE that—the head

of ICE for our region and he talked about the Law Enforcement

Support Center and heralded this as a positive thing. Certainly I

think it’s good to have information out there, yes. You mentioned

in your testimony, you used the term worthless. Can you give some

more details here? How can this be improved? Should we scrap it

and use the funds to get the 287(g) program spread out? I

mean——

Mr. PENDERGRAPH. I think—I think you should do exactly that

because we’ve tried many times to call and phone in a name of

someone if they give us a name, they don’t have any identification,

to the Law Enforcement Support Center. You might get an answer

back in a couple of hours; it might be tomorrow. By then this person made bond and they’re gone and you don’t know where they’ve

gone. Somebody made a comment to me today that there was a

Latino arrested in York County and the trooper bought him in and

he said: What’s the guy’s name? And he told him. He said: There’s

three of those already in there——

Mrs. MYRICK. Three.

Mr. PENDERGRAPH [continuing]. In the jail now. But they’re using

names that they know people that are legal and when you phone

that name in to the Law Enforcement Support Center, I’m not trying to be flippant about this, I don’t have time for this. You go to

the resource that you have and you know to be accurate. The

287(g) program with the fingerprints, the photographs is very accurate and very good and the rest of it to me is worthless and a waste

of time.

Mr. MCHENRY. Well, thank you for your testimony. Thank you

all for your testimony. Mrs. Moose, thank you so much for telling

your story. I know it’s not easy to share but it’s very important

that the policymakers in Washington hear your story and I know

that Congresswoman Myrick is working so very hard in your son’s

honor and thank you for working hard on this important issue.

MS. MOOSE: We appreciate really what she’s trying to do very

much.

Mr. MCHENRY. And thank you all for agreeing to testify today.

It’s very important and we’re grateful for the input.

Mr. SOUDER. Congresswoman Foxx.

Ms. FOXX. Thank you, Mr. Chairman. I wanted to pay a compliment also to my former colleague, Senator Pittinger, who is here

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and I thank Congressman Myrick for bringing him to our attention.

He’s sitting right over here. We sat pretty close to each other on

the back row in the North Carolina Senate my last term there. In

addition to the legislation which you got passed in terms of the taxpayer I.D. he did something which I think is taking North Carolina

in a—in a big leap and something that many of us tried to do for

a long, long time and that is to force North Carolina State government agencies to check data bases to see if people are here legally

or illegally and I think some of the issues you all have brought up

make us realize we’ve got to do a better job of making sure those

data bases are reliable. But Senator Pittinger is really working at

the State level and in thinking about what he’s done and what

some of us are trying to do in the legislature it appears to me that

our Federal Government has failed in so many ways to do what we

should be doing in terms of illegal immigration and I was thinking

about what Mrs. Moose said a little bit ago. The press is constantly

touting the number of people who are killed in Iraq every day and

yet very little is said about the number of people who die as a result of illegal immigration and illegal immigrants and the impact

that they’re having on our country. Our Constitution says that the

Federal Government will protect us from invasion and I believe

that’s the No. 1 role of the Federal Government is to protect us and

defend us. So it seems to me that where the Federal Government

fails it’s our responsibility to help local law enforcement and State

law enforcement to pick up the gap and it’s obvious that the 287(g)

program can help us. And I’d like to followup on what Congresswoman Myrick was asking a little bit ago about how we can

stream- line the processes for this program and it seems to me that

we need to find a way again to work on our systems. I guess I

think—I think very much on an individual level but I also think

on a systems level and believe that we need to do all we possibly

can to establish systems that will make things easier. And it’s clear

the Federal Government is burdened and doesn’t have enough

money. We could never create enough personnel or money at the

Federal level to enforce our laws so it’s clear to me that we have

to make this system easier to use and more accessible to local law

enforcement. So I would urge you all to give us any information

you can give us or people we should contact, other folks. Mr.

Pendergraph, you’ve heard it said that—you spoke to Ms. Myers

who took care of the person in Oklahoma but if you have colleagues

who were running into problems you need to let us know and if

there are sheriffs out across the State whose own Member of Congress will not help them I can tell you that these Members of Congress will help and I am—I am more than a feisty mountain

woman. My husband says I remind him of a little ant who once—

they take on big tasks and—and get them done and I—I like to

make systems work so I hope you will help us make the system

work at the local level if we can’t make it work at the Federal

level.

I think the people of this State are fed up, frankly, with the Federal Government and what we’re not doing and that’s why you’re

seeing these Members of Congress at least doing all they can to

make it work. Mr. Pendergraph, go ahead.

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Mr. PENDERGRAPH. Representative Foxx, if I could just make a

comment. I know one of the—the holdups of the 287(g) program as

far as granting that request to other sheriffs’ offices in North Carolina particularly is resources our local ICE agents have here. SAC

Ken Smith who was here earlier wouldn’t divulge and I won’t either; I know how many ICE agents are in North Carolina and I

know that since we started our program that they’ve had to reassign ICE agents to deal with the numbers that we’re seeing. They

can’t support many more because they are flooded with work.

I don’t know where the resources are going once they’re appropriated in Washington but they’re not getting to the local field offices because they can’t handle what they have now. If more sheriffs in this State got on board then there would be no ICE agents

to deal with what they normally do.

Ms. FOXX. Mr. Lands, may I ask you a question.

Mr. LANDS. Yes.

Ms. FOXX. What could we do to authorize the State courts to handle more of these cases? Is there—Is there something that we can

do to allow more being done at the local level so we don’t require

more ICE agents? Can we change our system in such a way to do

that? Could—Do we need to write Federal laws that devolve some

of that responsibility to State courts.

Mr. LANDS. I guess that addresses what I said earlier, what’s

going to be the immigration policy of the Federal Government. My

understanding right now is this is a Federal Government issue and

the States can have local law enforcement say this is an immigrant

and then they’ll designate—I mean, this is an illegal immigrant

and they will designate and ICE takes over and we have to go to

Atlanta and an immigration judge in Atlanta decides whether they

get deported or not. I guess it would be the authority of Congress

to decide that a State judge could have people who make the authority but that would be a complete change of the law and, you

know, that would be creating a jurisdiction for State courts that

doesn’t exist now and that’s something that I guess you all certainly would be able to look at but that would be a total—total difference in the way things are carried out.

Ms. FOXX. But, you know, Congressman McHenry pointed this

out and I’ve mentioned this comment with many people. The rule

of law I believe is what sets this country apart from every other

country in the world in addition to our Judeo-Christian beliefs and

those two go intimately together in my opinion and it seems to me

that in our rule of law we should think of these people who break

the law first as criminals; second, as illegal immigrants, they’re

tied together. It seems to me we ought to find whatever mechanism

we can find to process them as criminals and give them the—the

results—the effect of their criminal activity and think of them as

illegal immigrants next and that’s—that seems to me a frustration

that everybody is having now and—and they are I think—many of

them are prone I think to break the law a second, a third and a

fourth time because they came here first by breaking the law.

Mr. LANDS. Well, this sort of touches on my—my written statement there but you were saying that they ought to be viewed as

a criminal first and then the illegal immigrant second, and I guess

my written statement was saying that the Federal Government has

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to decide whether being an illegal immigrant is deportable or not

because you’re—the way the system works now is we’re having to

wait for them to commit a crime—a State crime and become a

criminal before they even show up for being as—as deportable and

I referenced—of course, this was me trying to figure it out—I referenced that there’s—you could place illegal immigrants in five categories. Group 1 is the illegal immigrant who commits a serious

crime that everybody designates as serious. Well, there is mechanisms in place to try to have that person deported. Group 2 is the

illegal immigrant who commits a crime that the Federal Government right now has been designating over the lack of resources as

not serious but the State government says is. A classic example,

driving while impaired. That has not been deportable before but efforts are being made to say that is serious enough. That is Category B. Category C is the illegal immigrant who runs a red light

and now comes to the attention of law enforcement. Category D is

the illegal victim who now has been the victim of a crime but because of that victimization is now known to law enforcement. And

Category E is the person who is out there, hasn’t had any influence—hasn’t impacted as—the law enforcement hasn’t come across

them. Now they’ve all committed the same Federal crime that

they’re here illegally and as I understand the Federal law they all

could be deported but that’s not happening. The Federal Government says we’ve got to wait until they commit a serious crime or

we’ll have an argument now whether they commit drunk driving

and now create this second category of crime but are we going to—

if we get 287(g) authority, you know, what’s going to happen when

these sheriffs say, OK, you know, this person here we think is in

a gang. We haven’t seen them committing a crime, we haven’t gotten the evidence that they’ve committed a crime but we know

they’re in a gang; we want to write them up and have them deported and it goes to Atlanta and the judge says: That’s not in our

category yet. You know, is that going to happen? And, you know,

you’re right. I think—I think everybody says we want to get the

criminals out, the ones who are committing crimes, but then, you

know, are we—does that create an amnesty program that if you

don’t commit the crime you’re staying and that’s—you all are going

to have to come up with that—that designation. What’s the immigration policy? Because once you give 287(g) authority to allow the

local law enforcement agents are you telling them, OK, you come

across an illegal alien who runs a red light, do you write them up

or not, you know? Are you going to make it where they have to

commit a serious, however you want to define it, State crime before

they ever get deported? And, you know, that’s—you’re waiting

around for them to victimize people in this State before you ever

decide whether you’re going to deport them or not, and I don’t

know that’s something people want to wait around for.

Mr. SOUDER. Let me—I have some questions, Mr. Lands. Is it illegal in North Carolina to have a false I.D.?

Mr. LANDS. Yes.

Mr. SOUDER. Isn’t that something you could prosecute.

Mr. LANDS. You can prosecute. That’s State law. That’s correct.

Mr. SOUDER. Do you prosecute for a false I.D.

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Mr. LANDS. If we determine that and we do the best we can in

prosecuting it.

Mr. SOUDER. Don’t almost—Doesn’t almost every illegal who

works at a place in North Carolina have a false I.D.? In other

words, couldn’t theoretically your local sheriff go with your local

district attorney and go into every workplace and actually arrest

people.

Mr. CLONINGER. We could but we’d have nowhere to put them.

I mean, that’s—that’s what you’re saying here.

Mr. SOUDER. Well, let me ask another question then.

Mr. LANDS. Well, it’s probably—in the vast majority it’s a misdemeanor. You’re talking about under North Carolina structured

law getting a suspended sentence. Law enforcement has to decide

whether they’re going to go and determine that and—and probably

at this point it comes to their—it comes to their attention. They’re

not going to go out and look for everybody.

Mr. SOUDER. I want to make a point of this. So—But the State

of North Carolina could, in fact, make it something other than a

misdemeanor if they felt there was a crime problem here in North

Carolina from illegals; North Carolina could make it, if they chose,

a felony to have a false I.D. because it’s—in other words, this isn’t

just a Federal question here. You can theoretically go in now—Isn’t

it a State crime to not pay taxes—North Carolina taxes.

Mr. LANDS. That’s correct.

Mr. SOUDER. And couldn’t the sheriff theoretically working with

the local district attorney go into every business where there is an

illegal who hasn’t declared under their actual name and pick them

up? Because what we’re really struggling with here is—First off,

we don’t have control of our borders. None of us here believe that

the Federal Government is doing their job. But to some degree in

this country nobody wants—I’m a Republican, I heard Ronald Reagan’s speech, Barry Goldwater, one of those people, but the fact is

nobody wants to raise their taxes at the township level, city level,

county level or Federal level and this is going to cost a lot of money

and it isn’t—and our debt is greater than all State and local and

township debt combined in the United States times 10. Only we

can print money and you can’t. That’s a big difference. So we inflate it and we charge interest rates. We sell off our Nation to foreign entities because we run up the Federal debt. Now the fact is

that they can’t just in this massive question, nothing in front of

us—quite frankly nothing in front of us even begins—as I mentioned earlier a work permit—due to the scale of this we’re going

to have to go out with this thing together. You’re going to have to

go. It isn’t just enough to say to the Federal Government: You guys

don’t have the will to do this, because it’s the businesses here in

North Carolina and in my district that are—that are saying, look,

we’re going to—the manufacturing will shut down without these

workers, a lot of the service industries, then all the people, the doctors, attorneys and others who will be—because there is this income there. Another question I have is have you been sitting down

with your local chambers and trying to talk through it because this

isn’t just a matter of saying go fix it because the question is are

you helping fix it in North Carolina in addition to us at the Federal

level because we’re going to have to jump on this together. This is

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going to be like crystal meth and meth that we—we had some

States starting to control the pharmacy stuff then we realize that

it just rolled over to another State then it moved to the Internet.

In a hearing earlier this summer on meth the DA is now saying

80 percent of it is coming across the border; it’s now becoming a

problem, precursors are coming across. And somehow we’ve got to

figure out how to do this together because we’re never going to

have enough ICE agents. We need a lot more. But we’re also going

to have to have the States saying: Look, there’s a whole bunch of

State laws being broken. You don’t have to sit back and wait for

us to do it. And if you don’t have tough enough State laws, pass

some.

Mr. LANDS. And they can be passed. I would certainly say the

legislature can do that. The question becomes is that a serious

enough crime—State crime for the Feds to decide they’re going to

deport the person. Drunk driving hasn’t been considered serious

enough by the Federal Government to deport. They haven’t given

the resources to deport. Now there is being efforts to try to do that.

Do you think if we come in there with a State misdemeanor that

they didn’t pay taxes that at that point the judge down in Atlanta

says deportation? You know, we don’t know. We don’t know what

the policy is. And what I was saying with 287(g) training you’re

going to have to let this law—these law enforcement officers know.

Is—You find an illegal alien who sped and ran a red light. Is that

going to be deportable? Is it?

Mr. SOUDER. I was kind of building on Congressman McHenry’s

comment that they broke the law. They didn’t break the law—they

probably broke the law on immigrating, the law on I.D., the law

on taxes, they’ve broken a series of laws in that and that one of

the questions is deportation, another—are they going to be in prison for breaking that because if you were in prison for breaking it,

particularly if you stepped it up from a small misdemeanor to a

greater one, the word of mouth on the street is going to change as

well and we need to be working this—this process up because it

also buys us time to make more Federal cases on that. You’re absolutely right. We’ve got to decide what’s a deportable offense and if

we start to make this—this change, that we’re going to have a twotiered system. In fact, one group with Hispanics I meet with in my

district off the record with no media, they were making the case

that there are two kinds of laws and it’s part of their culture and

tradition because Mexico, in fact, doesn’t enforce the laws, they’ve

been—and there are kind of serious offenses and small laws that

you can ignore and we’re developing this process in the United

States that we have double legal standards. There are laws you can

get out of. You can drive 68 but if you cross 70 and you kind of

have still some—that’s an unofficial written rule, stay within five,

occasionally at the end of the month it varies, you learn that as a

citizen, but that you look at this and we have a little bit of that

but this is a wholesale change in this kind of process.

Now what I’ve seen—what I—what I am incredibly frustrated

with is I don’t see any realistic discussion quite frankly in Washington, DC, on how hard this is going to be and how many billions

of dollars and how long it’s going to take. Everybody wants to just

do a magic thing and say we’re going to do work permits and we

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do—or we’re going to do—seal the border. I was just—I mean, I go

down to the wall a few times a year. Fencing this border is going

to take forever and when I met with the Mexican ambassador just

before break and he was trying to give me this big shtick about

how they’re improving things and all of that, that there is an area,

Neely’s Crossing, just east of El Paso where the Mexican police

can’t even go into and they have a bulldozer there. When I was

there with the border patrol it started out they told us we needed

to clear out; it wasn’t safe. They have a bulldozer to knock down

the fences and I asked the Mexican ambassador: Why don’t you

stop by removing the bulldozer. That would be a start. Take out

the bulldozer or give us like an F16 permission to go over there

and take out their stupid bulldozer because this is—this is going

to be a long process of doing the fence. Then the whole nature of

how to figure out how to secure these I.D.’s as we’ve learned without fingerprints, secure I.D.’s is a joke because they get different

names.

By the way, Sheriff Pendergraph, if you have any more great examples I’d love as many of them for the record as many as you

want to say because that helps make our case of how stupid this

is, but how hard it’s going to be because then we need things to

read the fingerprints all over the country. Then we’ve got all these

Federal agencies. What I was asking Scott, my ICE detail, is how

come this information is—why doesn’t the local law enforcement

have this, and he gave me two more—we use every letter of the alphabet. We have so many intelligence agencies that we use every

letter of the alphabet, at least three or four variations of it, that—

because this is a RIS system. You all don’t use the RIS system.

Why is that? Well, immigration law has a confidentiality. Yes, you

can find a felon but not if they’ve violated immigration law unless

you get into the 287 program. I mean, we’ve got a mess in trying

just to sort that out. Then that—employers are calling in; they can

find out, they can be told by Social Security that the number is

doubtful, but if they make a mistake they can be sued and that—

that we have—we’re looking in my opinion if we go at this seriously

on a border and I.D. question 2 to 4 years if we do massive infusions of funds to try to make it because otherwise we’ll deport them

and they’ll be back, deport, be back, deport, be back, and in that

we’re looking at two to 4 years. That’s where the question of—State

and local question. If you can put some of these people in prison

and areas, will you do it? Buy some time and as we add more

agents and as we get the border secured behind and as we get a

better I.D. system we’re going to have to have some sort of thing.

Every police agency in my district—first off, the rural districts

have been overwhelmed with meth. They have officers that are

burned out in overtime. They don’t have prison space. Part of it is

they need to go to their county commissioners and say that, too.

They can’t just come to us because if we get the choice—I have supported the Cops Program. I have been trying to fund the different—we go in there with different grant structures that have

been hammered. We’re going to lose all of our drug task forces in

the Nation if we don’t get more—different grants and all of that

type of stuff. I battle for local law enforcement dollars but we’re

under tremendous budget pressures and if you say our first responVerDate 11-MAY-2000 11:43 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 C:\DOCS\36029.TXT HGOVREF1 PsN: HGOVREF1
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sibility is let us get the fence and the border secured and let us

work on the I.D. system and intelligence systems, we need some

help from the State and local law enforcement to buy us some time

and in detention facilities because there isn’t enough money to do

all of that and the worse disaster, and I hope we can make this

case here, because if we go back to Washington and pass some kind

of a new system we’re going to have such a result of a classic thing

all over again where at the end of the day what we’ve done is amnesty and we’re going to start the process all over again. So that’s

kind of a little—and I’ll like to hear some of your reactions.

Mr. LANDS. For people accused of State crimes I think you’re

buying your time. They are in his jail and we’re waiting around to

try them because of all the number of cases and whenever the Federal Government decides to look into these cases we’re waiting

around for it to be determined whether the Federal U.S. Attorney’s

Office will get involved in the case so you get some time.

Mr. SOUDER. But do we have anybody in jail for false I.D. or failure to pay their taxes?

Mr. LANDS. No. I would say not at this point. But let me bring

up this fact. I forgot about the case and I may not be able to give

all the correct details on it but I did have an assistant who was

trying a false identification case and because of the way the statute

is written when he subpoenaed the Federal employee to come in

and talk about the Social Security number he was told: We don’t

have to honor your State subpoena.

Mr. SOUDER. Can you provide some details? That’s exactly what

we’re looking for. If you can’t enforce your State laws, because

we’ve heard this on tax and immigration questions, we need the

specifics because——

Mr. LANDS. We had to send the letter and beg and plead please

come down here and help us prosecute this case because that’s the

way the statute is written. The U.S. Attorney has to give permission for the Federal employee to come to State court to honor our

subpoena.

Mr. SOUDER. That’s very helpful. Any other comments.

Mr. CLONINGER. I’d love to comment. When you start talking

about cooperating that’s what the 287(g) program is and we’re—

myself, we’re looking at trying to fund that ourselves without outtasking for money. But when you start talking in the nature of

wanting to enforce all of these laws and I’m sitting there and the

jail is almost full, where am I going to put all of these people that

you want arrested? They’re here because they came across illegally.

We charge under State law; Mr. Lands’ criminal justice system

right now is overburdened with a number of cases pending because

we don’t have sufficient funds and judges, prosecutors to prosecute

all the cases. We’re just getting into—You’re just adding more to

this vicious cycle in a criminal justice system that is neglected and

overburdened as it is. Now you have infused 400 false I.D. cases.

How many of the pending State cases; crimes that occurred in

North Carolina by citizens are going to be that much further put

behind; continued that much longer trying to do. It’s a lot more

complicated than just say State prosecutors, State law enforcement

officers, you enforce your own laws and it will be all right. That

76

is not the answer, you know, because we’re already at the end of

our ropes for money.

Our people holler about the taxes and to sort of say, well, we’ll

do this but you’ve got to pay for it, it only comes down to the cop

on the street, the sheriff running that jail wondering where is he

going to put this body? So it’s not as simple—and I don’t—don’t

mean to read your mind but it’s not as simple as saying, well, enforce your own laws, State; you’ll be all right. They wouldn’t be

here if they hadn’t violated Federal law in the first place.

Mr. SOUDER. I will point out, however, that if we raise the taxes

in order to pay for it we’ll pay a Federal finder’s fee, our bureaucracy will be about four times as big as your bureaucracy and it will

be less efficient and you’ve got all kinds of things behind. I’m not

suggesting—and we’re more broke than you are and we’ve all got

to tax the same people. The people of North Carolina will be taxed

in one way or another to pay for this. This is a—This is—Now the

question is how much—and this is what I have been raising to my

employer is you’re going to get a tax on this. If there are going to

be visas one of the things we need to be talking about in the U.S.

Government, it’s not like a $50 visa. A work permit would be something along like $2,000 because who is going to pay for the enforcement of the overstays? Who is going to pay the local law enforcement for this? Who is going to pay the U.S. Attorney’s Office? Who

is going to pay the U.S. Marshal Service? They’re supposed to be

transporting them in many cases. Then there has to be some kind

of a system to figure out how we’re going to fund this at all the

levels so that—Ms. Foxx had a short comment.

Ms. FOXX. Well, I just want to say that I agree with what the

chairman is saying here and I think that by saying that, no, we

can’t do this at the local or State level then—then we’re throwing

up our hands and giving up and I don’t think we can do that. I

think what has to be done is we have to do what we can do at each

level of the government and I think what the chairman is pointing

out are really very important points. Somebody is going to pay for

this somewhere along the line and we are so much better off pinning it to where it belongs and making the visas more expensive,

doing those kinds of things, but it’s not all going to be done at the

Federal level, yet the Federal Government has abrogated a lot of

its responsibility and I think the people of the State can demand

that it be done at the State, toughen up its laws and say we’re

going to do some of this. We realize that some of the problem has

been created by lack of enforcement at the Federal level but you

all are paying for it one way or the other and we’re so much better

off if we enforce the laws. That—That’s where the money seems to

me ought to be spent instead of in Social Services and in the

human tragedy and human cost that Ms. Moose is talking about,

and that’s where we ought to do it and if folks understand that

then eventually I think the people of this State are going to say

to their local county commissioners and to their State legislators

we want you to do what you can do and then we’re going to demand also at the Federal level that our Federal folks do that. So

I completely agree with you—with the chairman and I think from

his experience it instructs us all.

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The other thing I want to say is I read a couple of articles about

this hearing today and I don’t know if the chairman saw them or

not but they said this was a dog and pony show we were having

done for political purposes. Well, a lot—the media will not report

this but a lot of good comes out of these hearings and a lot has

been learned today and even if it doesn’t get reported in the media

I count on the citizens who are here today; I count on Senator

Pittinger to take some of what he’s learned here today, any county

commissioners who are here, to take these ideas back to them because we won’t get this reported in the media and there won’t be

credit given to the chairman for doing what he does to go out and

learn these things because we can’t learn them in Washington. You

can’t hold enough hearings in Washington to learn the kinds of

things that we’ve learned here today so I hope those of you that

are here today will go out and say, yes, good was accomplished by

this because we’ve learned some things we didn’t know before and

we’ll act on those things. I want you to know we will act on those

things and I’m getting sick and tired of the media making this look

like it’s a nothing issue.

Mr. SOUDER. Mr. Pendergraph.

Mr. PENDERGRAPH. Just a comment. You asked about additional

examples and I could give you multiple examples of people that

have been convicted and served time in jail in other States that are

illegal immigrants in this country and were never checked through

any immigration data base and we ended up with here or in Mecklenburg County. The bottom line is, and I know in my sheriff’s office if I suggest to my staff that something get done they’ll find a

way to do it. If I told them I want a door put in that hallway I’ll

come back tomorrow and they’ve cut a door in that hallway. The

tone has to be set at the top and the tone at the top is not to get

something done. If the President of the United States decided he

wanted something done about this he would get it done and it’s not

being done and until that tone and that mission is set and if we

can—we’re chipping away at an iceberg here that we’re making little bitty pieces of ice then it makes no difference across the country. It’s got to be a nationwide thing that’s addressed just like it

is here with the Federal Government on board and if you want the

borders secured—and I’m not being funny about this—send a sheriff down there. We’ll go down there and secure those borders. But

that’s what’s got to be done is to put something there to keep the

ones we do get out from coming back. The only thing that is going

to change is for Mexico to improve—and they’re not all Mexican

and Latinos that we’re checking at the border. We’ve got 17 different countries we’ve identified that we deported people to already. It’s to improve the economy in those countries that they

don’t need to leave for a better life, to enforce our Federal laws and

to make it a felony to employ someone in this country where they

can’t get a job easily.

Mrs. MYRICK. That’s right.

Mr. PENDERGRAPH. That’s what they come here for and I can’t

hold that against them. They’re looking for a better life but I’ve arrested people in my career that have robbed banks because they’re

trying to feed their families, too, and which laws are we going to

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enforce? Which Federal laws? They didn’t get a break because they

were trying to feed their family and it’s just frustrating.

Mr. SOUDER. With all due respect and fairness in El Paso we’ve

heard this, at Nogales we’ve heard this, San Rosita, San Diego

we’ve heard this. The local sheriffs and prosecutors at one of these

locations, the threshold for the Federal marijuana is 700 pounds.

They don’t even take it under 700. At local it’s 200. And when I

challenged them with that they said we’re tired of our jails being

so full of people running drugs to Indiana and to North Carolina

because if your drug appetite is overrunning and jamming our prisons, people coming here illegally aren’t coming to work in our

towns, they’re coming to work in North Carolina and Indiana, and

you guys then come to us and say why aren’t the sheriffs on the

border securing it? Why aren’t the prosecutors handling it? It’s

your problem and our towns are paying for it at the border because

you won’t handle your problems in Indiana and North Carolina. It

is—It is a multi-task where we all need to work together and

there’s going to be tiers of this in limited budget. It’s hard and,

you’re right, there hasn’t been a clear leadership from the top. I’m

afraid that this pressure to get some kind of a bill is going to wind

up with a bill that’s worse than no bill; that if we do a window

dressing that results in an unenforceable provision and then results in—in effect authorizing what’s here with no plans for what

to do with it, no—then we back off and we’re right back to where

we were that started us with it.

Mrs. MYRICK. That’s right.

Mr. SOUDER. So we need to do a bill but we need to do a right

bill and we need to do it in steps, not in one big ball here because

we don’t have the funds; we don’t have the ability to do it in one

big ball. We got into this over decades and it’s going to take us a

while to get out.

Now—But we all have to work together and I can—I hear your

passion; I hear your frustration. I mean, here we have a mom who

is saying I gave the ultimate sacrifice with this because you guys

didn’t do your job and it’s a challenge to us to try to address that.

I have a couple of very more technical questions. This may be the

only hearing that Congress conducts on 287 so I want to make sure

I get a couple of things in. Mr. Pendergraph—and—first let me ask

you. Aside from first getting returned calls like Tulsa wasn’t, what

in the process do you think we could streamline and improve for

counties being able to get this? Is it an awareness question, is it

the time it takes to do it, do we need more people training? What

in the process of the 287 provision do we need to do?

Mr. PENDERGRAPH. I think—I’m the treasurer of the Major County Sheriffs’ Association which represents the largest sheriffs’ offices

in the United States and we’ve discussed this frequently at our

meetings. I think the majority of the sheriffs—and I think police

chiefs, too, because we have joint meetings with the major city

chiefs—I think they’re aware of the program. What shocked me is

when I learned of it by accident from one of my cohorts from California I came back and requested information from a local ICE office and they didn’t know what I was talking about. ICE didn’t

know what I was talking about. And I don’t fault them for that but

they got right on it and then said, hey, there was a law passed in

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1996 that authorized the certification and—of local and State law

enforcement officers. I think once the application is filed and we

kind of have that down pat about what needs to be said and done

as far as actually applying for this, they don’t know what to do

with it apparently in Washington because they’re overwhelmed

with work now that they say to me privately: We can’t support any

more because we don’t have the resources in the field. I think

that’s where it needs to be addressed is how much support is local

law enforcement going to get once they apply to see this 287(g) program. And I’ll tell you on the record that I got my people trained

and ready to go to work fully 2 months before my equipment was

installed and had it not been for Representative Myrick, I mean,

pounding on someone’s head in Washington I’m not sure we’d have

it installed now because there was no one there that could make

a decision about who is going to do what. We’re standing here

trained, ready to go and work on this problem and the equipment

is not installed. There is just—There is something there in the road

blocking everything that there’s an attempt to be done to improve

and I certainly hope Alan doesn’t face this problem but—he’ll deal

with it but——

Mr. SOUDER. I have a specific request for you——

Mr. PENDERGRAPH. Yes.

Mr. SOUDER [continuing]. And it will tell us a lot about the attitudes of your association and others whether we can do this. Clearly meth was something that came up from local law enforcement,

local counties up to the Federal and took forever and the drug czar

is still trying to figure it out—a cheap shot deserved a cheap shot—

and simply are blind to the meth problem. That—Will at least the

big county sheriffs’ association, if you could raise it with the national sheriffs’ association, would you first see if the association

could find basic data and we’ll have our staff check this, too. It

would be helpful coming inside and outside. How many sheriffs

have asked this: What’s the standard process of doing it; this Tulsa

type thing? The second thing is will your association go on record

saying that there needs to be more agents devoted to this because

those of us who are in the program are finding we don’t have adequate support. In other words, generally speaking every association

advocates directly for things that help them; in other words, we

need more cop grants and so on but, in fact, it doesn’t do us any

good to give you more authority if the support groups don’t

have——

Mr. PENDERGRAPH. I understand. That’s absolutely true.

Mr. SOUDER. And also I’m talking to the attorneys’ association

because it’s fine for us to do that and the U.S. Attorney’s Office

can’t or the local attorneys can’t if there’s not jail and bed space

but to give us a whole listing thing on the record because if we can

say in Congress this is—the national sheriffs are saying they’re

willing to do this and they could do their part but what they’re

running into is lack of funds in these areas because there isn’t this

kind of support that would be helpful in us making the particular

case with that. Mr. Cloninger, do you believe you would have been

cleared if you hadn’t had this hearing today?

Mr. LANDS. He still has some paperwork they need to sign.

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Mr. CLONINGER. My intention today was to sit in here and go

why do you all—have I not been cleared but, no, this hearing has—

I don’t believe it had an effect on it.

I think that just chipped that along but I have been questioned

why it’s been taking——

Mr. SOUDER. How long did it take you?

Mr. CLONINGER. Well, we finished in May—our final application

process in May and June, July, August—4 months.

Mr. SOUDER. And when did you—so had you started a process before May?

Mr. CLONINGER. February. February we made the request and

when we received forms to fill out as to what we’re willing to do,

what we’re willing to spend, sent that in and received new information and the program was evolving. If I can take a second, the time

we had started we had to get a T2 line for communication purposes

for your computers and I’m going to need. That’s a lot of money.

So when Jim was going through that and they would develop it to

a DSL line so there was a change even in the middle of our process.

I think I’m correct in that.

[Mr. Pendergraph nods affirmatively.]

Mr. CLONINGER. So it’s a developing—It’s in a State of flux and

I think it will change again before I even get started but I think

that change is what delayed it some- what. But I agree that our

local agents here—ICE agents did everything in their power to get

this through as fast as they can with the block which——

Mr. SOUDER. What other major costs are you looking at that will

be the major burden of this?

Mr. CLONINGER. The personnel issues. The DSL line, that’s going

to be minimal, but personnel issues and then bed space issues. A

bed in the Gaston County Jail will cost the citizens here $49 a day;

U.S. Marshals are paying me $60 a day to hold their Federal prisoners. We have already talked with the ICE deportation team

about how we would hold them. Supposedly under the agreement

if we—if one of my deputies decides to deport someone then we’re

on—that’s the way it’s supposed to be—going to have to hold that

person 72 hours before he or she is deported or sent down to a line

or some other long-term facility and after talking with Jim today

I’m not sure that will happen but that’s what we’re looking at.

Mr. SOUDER. One of our big challenges here is how to and it was

alluded to earlier and Sheriff Pendergraph said you have Federal

prisoners to help share some of that cost and as we’ve watched illegal narcotics and other contraband, certainly we have to watch this

with terrorists, is that just like as we’re spending more money, certain things at airports and move to other things, New York City,

there’s been an argument that all the fund moneys spent out of

New York, Boston and Washington, DC, on terrorism but if you

don’t do your second group while you’re hardening your first group

and then your rural areas the terrorists—clearly there are A targets, B targets, C targets and D targets but the danger here is that

even if most people were working in Mecklenburg County they’re

going to go where the resistance is least and the smaller departments are the ones, for example, the one in meth as well, and

that’s why it probably took us so long to respond and that the costs

that you’re talking about are going to get more and more difficult

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as we move out which is why clearly we’re going to have to figure

out in rural areas, suburban areas as well as the urban areas and

then depending on the urban areas your tax base may or may not

be big enough to handle it; in the declining city as opposed to a

growing city is a huge challenge be it in Los Angeles in about a

month looking at the rerise of gangs in Los Angeles and Compton

and the huge problems they have with the suburbs getting the tax

base and the city with a lesser tax base or a suburb like Compton

how in the world do you deal with it? So we’re going to continue

to look at it. Anybody else have any comments you want to make?

Ms. FOXX. One more quick comment. You asked a great question

about getting the sheriffs from the larger cities to do something.

Would it be possible to do a survey of the areas that have received

the 287(g) approval to ask them for what could be done to make

the process better in a general way so that—I don’t—something

done on e-mail, I don’t mean a massive job, but if we could do

something and maybe Sheriff Pendergraph and Sheriff Cloninger

could get some general idea. I’m just thinking about an evaluation

that could be done and then be given to ICE to say here are some

ways that this process could be made better or could we force ICE

to hire an independent person to look at their process and do an

evaluation to see what’s there that doesn’t have to be done or some

ways that they could do that. It seems to me again that moving the

system quicker is one of the things that needs to be done and—and

I think the answer to your general question is something is blocking it; it’s generally called bureaucracy.

Mr. SOUDER. And dollars.

Ms. FOXX. And dollars. But sometimes it’s just a clerk mentality

that people can’t break through and I’m just thinking about doing

an evaluation that could speed it up.

Mr. PENDERGRAPH. I can speak to North Carolina because this

has been discussed in the North Carolina Sheriffs’ Association. All

100 sheriffs in this State would join this program tomorrow if they

could afford it and they could get acceptance in the program.

They’ve made that very plain in our annual conference in Charlotte.

Mr. SOUDER. Well, thank you very much for your testimony, Ms.

Moose. This won’t bring your son back but maybe it will help move

the cause and thank you for sharing your testimony today. Thank

you all for your work. Almost all of our crime solutions in America

start with a local policeman working hard on the beat that gets us

information to move up and then the dedicated attorneys who are

upholding the law. So thank you very much for being a part of this

hearing. If you have additional comments, additional information

for the record we’ll keep it open for a period of time. With that the

subcommittee hearing stands adjourned.

[Whereupon, at 1:25 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Virginia Foxx and additional information submitted for the hearing record follows:]

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