U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

57–851 PDF 2011

MOVING TOWARD MORE EFFECTIVE IMMIGRATION 

DETENTION MANAGEMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON BORDER, 

MARITIME, AND GLOBAL 

COUNTERTERRORISM 

OF THE

COMMITTEE ON HOMELAND SECURITY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 10, 2009 

Serial No. 111–47 

Printed for the use of the Committee on Homeland Security 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 
(II) 

COMMITTEE ON HOMELAND SECURITY 

BENNIE G. THOMPSON, Mississippi, Chairman 

LORETTA SANCHEZ, California 

JANE HARMAN, California 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

HENRY CUELLAR, Texas 

CHRISTOPHER P. CARNEY, Pennsylvania 

YVETTE D. CLARKE, New York 

LAURA RICHARDSON, California 

ANN KIRKPATRICK, Arizona 

BEN RAY LUJA ́ N, New Mexico 

WILLIAM L. OWENS, New York 

BILL PASCRELL, JR., New Jersey 

EMANUEL CLEAVER, Missouri 

AL GREEN, Texas 

JAMES A. HIMES, Connecticut 

MARY JO KILROY, Ohio 

ERIC J.J. MASSA, New York 

DINA TITUS, Nevada 

PETER T. KING, New York 

LAMAR SMITH, Texas 

MARK E. SOUDER, Indiana 

DANIEL E. LUNGREN, California 

MIKE ROGERS, Alabama 

MICHAEL T. MCCAUL, Texas 

CHARLES W. DENT, Pennsylvania 

GUS M. BILIRAKIS, Florida 

PAUL C. BROUN, Georgia 

CANDICE S. MILLER, Michigan 

PETE OLSON, Texas 

ANH ‘‘JOSEPH’’ CAO, Louisiana 

STEVE AUSTRIA, Ohio 

I. LANIER AVANT, Staff Director 

ROSALINE COHEN, Chief Counsel 

MICHAEL TWINCHEK, Chief Clerk 

ROBERT O’CONNOR, Minority Staff Director 

SUBCOMMITTEE ON BORDER, MARITIME, AND GLOBAL 

COUNTERTERRORISM 

LORETTA SANCHEZ, California, Chairwoman 

JANE HARMAN, California 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

HENRY CUELLAR, Texas 

ANN KIRKPATRICK, Arizona 

BILL PASCRELL, JR., New Jersey 

AL GREEN, Texas 

ERIC J.J. MASSA, New York 

BENNIE G. THOMPSON, Mississippi (Ex Officio) 

MARK E. SOUDER, Indiana 

MICHAEL T. MCCAUL, Texas 

GUS M. BILIRAKIS, Florida 

MIKE ROGERS, Alabama 

CANDICE S. MILLER, Michigan 

PETER T. KING, New York (Ex Officio) 

ALISON NORTHOP, Staff Director 

NIKKI HADDER, Clerk 

MANDY BOWERS, Minority Subcommittee Lead 
(III) 

C O N T E N T S 

Page 

STATEMENTS

The Honorable Loretta Sanchez, a Representative in Congress from the State 

of California, and Chairwoman, Subcommittee on Border, Maritime, and 

Global Counterterrorism ..................................................................................... 1 

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

of Indiana, and Ranking Member, Subcommittee on Border, Maritime, and 

Global Counterterrorism ..................................................................................... 2 

WITNESSES

Ms. Dora Schriro, Commissioner, New York City Department of Correction: 

Oral Statement ..................................................................................................... 5 

Prepared Statement ............................................................................................. 7 

Mr. Christopher L. Crane, Vice President, Detention and Removal Operations, 

American Federation of Government Employees National ICE Council–118: 

Oral Statement ..................................................................................................... 10 

Prepared Statement ............................................................................................. 12 

Mr. Donald M. Kerwin, Jr., Vice President for Programs, Migration Policy 

Institute: 

Oral Statement ..................................................................................................... 19 

Prepared Statement ............................................................................................. 20 

Ms. Brittney Nystrom, Senior Legal Advisor, National Immigration Forum: 

Oral Statement ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

Mr. Mark Krikorian, Executive Director, Center for Immigration Studies: 

Oral Statement ..................................................................................................... 39 

Prepared Statement ............................................................................................. 40 

APPENDIX

Questions From Chairwoman Loretta Sanchez for Dora Schriro ........................ 63 

Questions From Chairman Bennie G. Thompson for Dora Schriro ..................... 63 

Questions From Chairwoman Loretta Sanchez for Christopher L. Crane ......... 63 

Questions From Chairman Bennie G. Thompson for Christopher L. Crane ...... 66 

Questions From Chairwoman Loretta Sanchez for Donald M. Kerwin, Jr. ........ 68 

Questions From Chairman Bennie G. Thompson for Donald M. Kerwin, Jr. .... 70 

Questions From Chairwoman Loretta Sanchez for Brittney Nystrom ................ 72 

Questions From Chairman Bennie G. Thompson for Brittney Nystrom ............ 74 

(1) 

MOVING TOWARD MORE EFFECTIVE 

IMMIGRATION DETENTION MANAGEMENT 

Thursday, December 10, 2009 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON HOMELAND SECURITY, 

SUBCOMMITTEE ON BORDER, MARITIME, AND GLOBAL

COUNTERTERRORISM, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:09 a.m., in Room 

311, Cannon House Office Building, Hon. Loretta Sanchez [Chairwoman of the subcommittee] presiding. 

Present: Representatives Sanchez, Harman, Lofgren, Cuellar, 

Kirkpatrick, Pascrell, Green, and Souder. 

Ms. SANCHEZ [presiding]. Good morning, everybody. The subcommittee will come to order, and the Subcommittee on Border, 

Maritime, and Global Counterterrorism is meeting today to receive 

testimony on moving toward more effective immigration detention 

management. 

Today we are gathering to hear testimony from key stakeholders 

and advocates on the current immigration detention system and 

the challenges to reforming detention standards. 

This hearing comes at a crucial time since the Department of 

Homeland Security is currently considering how to reform and 

overhaul the current system. 

This past August, Immigration and Customs Enforcement, or 

ICE, Assistant Secretary John Morton and Secretary Napolitano 

highlighted vast changes that they plan to make to the immigration detention system. 

As someone who has advocated for improved medical treatment 

at detention facilities, for example, I am pleased that these changes 

are likely to include the hiring of health and medical experts as 

part of the new Office of Detention Policy and Planning. 

As a follow-up to this hearing, early next year we will conduct 

a second hearing to hear directly from ICE about their proposals 

and their plans to improve the detention system. But today we 

want to hear from you. 

As an advocate for improved and robust alternative-to-detention 

programs for vulnerable populations and non-criminal aliens, I am 

interested to hear what the witnesses today will suggest for a program to move forward. 

Since the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, immigrant detainees have 

reached an all-time high of 33,400 people. 
2 

That is astonishing, considering that in 1996 the amount was under 9,000, but it is not surprising considering that almost $800 

million, the largest expenditure for ICE, is spent annually on detention bed acquisition. 

I would like to hear from our panel of witnesses about what 

ideas they have to move beyond ‘‘bed acquisition’’ as a detention 

strategy. 

Furthermore, ICE currently uses a web of detention facilities, 

ranging from contract detention facilities to over 350 local and 

State facilities, along with Federal-Government-run facilities. 

Unfortunately it seems like this variety of facilities has made it 

difficult to ensure that there are some National standards that are 

being adhered to at all of the facilities. 

So I believe it is extremely important that any detention facility 

acting on behalf of the United States adhere to a clear and standard level of oversight and accountability. 

With the opportunity to discuss these issues today, and the wide 

range of perspectives our panel represents, my hope is that we will 

hear about specific actions and policy changes that need to be 

taken in order to improve the system. 

As we all know, the concerns and the issues that I have outlined 

today are just some of the many challenges that we face in overhauling our detention system. But this is part of what our committee oversees. 

On a final note, it is important to recognize that of the thousands 

of detainees being held in our detention facilities, 58 percent of 

them have no known criminal history. However, they are still held 

in expensive criminal detention facilities. 

So I thank our witnesses today, and I look forward to your testimonies and ideas. 

Now I yield to my Ranking Member, the gentleman from Indiana, Mr. Souder, for his time. 

Mr. SOUDER. Thank you, Madam Chairwoman, and we worked 

together on many issues and agree on many, but I have significant 

concerns about the tone of this hearing. 

It is one thing to advocate for facilities to be safer or more humane. However, what we are doing is holding people who—and we 

have done those hearings in the past, and this is for people who 

have been arrested. 

It is entirely one thing to argue that we are holding too many 

aliens in detention facilities, and they should be kept in facilities 

nicer than those available to U.S. citizens who have been arrested. 

The very basic fact is that aliens in detention facilities are there 

because they have been arrested for violating U.S. law. Under existing law, the penalty for illegal presence is up to 6 months in 

prison, with a maximum sentence of 10 years for multiple reentries. This is outside the penalty for any other criminal act they 

may have committed. 

I think the most effective immigration reform is to truly enforce 

the laws on the books. Detention is important for homeland security, public safety, and is a deterrent for illegal border crossers and 

false claims of asylum. 

In March 2007 this subcommittee held a two-part hearing on 

alien detention. Then-ICE director for detention and removal, John 
3 

Torres, testified that 90 percent of aliens released from detention 

with a notice to appear absconded and never showed up for their 

immigration hearings. 

It is not safe or efficient to release thousands of foreign nationals 

that are in this country illegally. They should be held in detention 

centers until their cases are heard and resolved. 

Aliens in detention facilities are not here on vacation. There is 

a flexibility to discuss how to improve the quality of facilities, since 

that seems to be a concern, but they should not be kept in facilities 

that are better than we give to citizens who are arrested and 

awaiting trial. 

I agree that they should be safe and humane, and we have held 

hearings because there have been problems with safe and humane 

standards in some of these facilities. 

But violent criminals should not be—and I agree that violent 

criminals should not be mixed with aliens who have not committed 

violent crimes like we try not to do in our American prison system. 

Controls should be in place to ensure that gang violence does not 

escalate in detention centers. Often they self-identify, and they do 

that in the American prison system, too, so don’t get two people 

from the same gang in the same cells. Those are legitimate concerns that we should be looking at. 

However, when we start talking about releasing thousands of arrested people who have come here illegally on their own recognizance, despite the high absconding rates, giving them free dental 

care outside of emergency services, or renting hotels, I think we 

have crossed into the ridiculous. 

Non-citizens arrested, held in detention centers, have broken the 

law. They should not have better facilities or privilege that U.S. 

citizens who have broken the law are getting held in prison. That 

should be the basic standard here. 

Are we going to give somebody who has been arrested for illegally entering the United States better health care, better facilities, 

more comfortable facilities, than somebody who is an American citizen? 

It would be impossible for me to explain to Hoosiers that the Department of Homeland Security is going to purchase a number of 

hotels around the country in order to house illegal and criminal 

aliens in comfortable, low-security settings, because they don’t see 

that as fair when American citizens don’t get the same treatment. 

I think it is important for us to discuss the role detention plays 

in immigration enforcement and border security, especially as immigration reform legislation is likely to be a focus again next year. 

This is not the time to scale back, create a whole bunch of other 

arguments, because if we do, we simply are not going to be able 

to get true immigration reform, because part of this is we have had 

our quotas too low. 

If our quotas are too low, we start to develop a backlog of American demand. But the Americans want to see the border sealed. 

They want to see people who have broken the law held accountable. 

In my opinion, the thrust of this could set us back in trying to have 

true immigration reform. 

I yield back. 
4 

Ms. SANCHEZ. I thank my Ranking Member. Well, that is one of 

the reasons why we have everybody before us and why we will 

have ICE also, to see what type of facilities and just as a side note, 

Mr. Souder, I am more concerned about the cost of incarcerating 

people, and what type of people we are incarcerating, and who we 

are holding them together, and whether there are emergency services available. 

More importantly, if these people have a claim under current law 

to be in this country, that they get through the process in a timely 

manner in order to put that forward. 

My understanding is sometimes because of the diverse patchwork 

of detention facilities that we have, people may be moved around 

so much that they actually don’t get their hearing or their judicial 

process as we would anticipate they could, especially if they have 

some claim—some rightful claim to be here under the current law. 

So that is why I called this hearing, not to suggest that we would 

purchase Hilton hotels. They are not good investments these days 

anyway. 

The Chairwoman now will recognize the Chairman of the full 

committee—is not here, nor is the other, so other Members of the 

subcommittee are reminded that under the committee rules, opening statements may be submitted for the record. 

I will welcome our panel of witnesses. Our first witness, Dr. Dora 

Schriro—is that correct?—was appointed as the commissioner of 

the New York City Department of Correction on September 21, 

2009. 

Immediately prior, she had served as special advisor to Secretary 

of Homeland Security Janet Napolitano on immigration and customs enforcement and detention and removal, and director of the 

Office of Detention Policy and Planning for the Department. 

In that role, she directed work on the Department’s plan to overhaul the Nation’s immigration detainee system. Dr. Schriro has 

also served as the director of the Arizona Department of Corrections and the Missouri Department of Corrections. 

Welcome. 

Our second witness, Mr. Christopher Crane, has been an immigration enforcement agent at the Department of Homeland Security since 2003. In that capacity, he has worked in the Criminal 

Alien Program, or CAP, as we know it, and has served as a member of an ICE fugitive operations team. 

Prior to joining ICE, Mr. Crane served this Nation for 11 years 

in the U.S. Marine Corps. 

Welcome. 

Our third witness, Mr. Donald Kerwin, Jr., is vice president for 

programs at the Migration Policy Institute, or MPI, overseeing all 

of MPI’s national and international programs. 

Prior to joining MPI, Mr. Kerwin worked for more than 16 years 

at the Catholic Legal Immigration Network. Mr. Kerwin is also an 

advisor to the American Bar Association’s commission on immigration and a member of the Council on Foreign Relations’ immigration task force. 

Welcome. 

Our fourth witness, Ms. Brittney Nystrom, is the senior legal advisor at the National Immigration Forum. In that position, she fo-
5 

cuses her advocacy on civil rights and due process issues facing immigrants and asylum seekers. 

Previously, Ms. Nystrom represented detained immigrants in removal proceedings and advocated for humane detention conditions 

as a legal director at the Capital Area Immigrants’ Rights Coalition. 

Welcome also to you. 

Our fifth witness, Mr. Mark Krikorian, has served—is it Armenian?—Krikorian has served as executive director of the Center for 

Immigration Studies since 1995. He holds a master’s degree from 

the Fletcher School of Law and Diplomacy, a bachelor’s degree from 

Georgetown University. 

Before joining CIS Mr. Krikorian held a variety of editorial and 

writing positions. 

So without objection, the testimony—your full statements—will 

be inserted into the record. I will ask each of the witnesses—it is 

the only panel we have, and hopefully we won’t have votes or anything called so we can actually get a good discussion going. 

I now ask the witnesses to please summarize your statements for 

5 minutes or less, and we will begin with Dr. Schriro. 

Welcome. 

STATEMENT OF DORA SCHRIRO, COMMISSIONER, NEW YORK 

CITY DEPARTMENT OF CORRECTION 

Ms. SCHRIRO. Good morning, Ms. Sanchez, Mr. Souder, Members 

of the subcommittee. I am the author of the report on preliminary 

assessment with recommendations for improvements, and I am 

pleased to speak with you today. 

As a matter of law, civil detention, unlike criminal incapacitation—and yet civil and criminal detainees tend to be seen by the 

public as comparable, and typically both confined populations are 

managed in similar ways by governments. 

With only a few exceptions, the facilities that ICE used to detain 

aliens were built and operate as jails. Additionally, ICE adopted 

corrections detention standards to guide the operation of its facilities. 

Establishing standards and expressing expectations for civil detention are our challenge and our opportunity. 

The commissioning and the release of the report speaks to this 

administration’s commitment to systems reform. The directive by 

the Secretary within a week of her confirmation was plain-spoken 

and heartfelt, to conduct a study and prepare a report that identified and addressed the root causes concerning the—I am sorry, concerns impacting detention and removal operations. 

Likewise, my access to information, detention facilities, and the 

detainee population was authorized without hesitation or equivocation by Assistant Secretary Morton. It is their resolve that resulted in its publication and will produce the reforms to come. 

The information for this report came from my tours of 25 detention facilities; analyses of agency records and reports; conversations 

with detainees and staff; meetings with over 100 NGOs; discussions with DHS, DOJ, Members of Congress and their staffs; and 

studies authored by Government and others, including the GAO, 

DHS, ABA, and the United Nations. 
6 

I drew, of course, from my own experience and work history, published research, formal education, and training. 

The report begins with a description of ICE detention policy and 

continues with findings based upon my analysis. Here are several 

of those core findings. ICE operated the largest detention and supervised release program in the country. 

A total well in excess of 375,000 aliens from 221 countries were 

in custody or under supervision by ICE during fiscal year 2008, 

with a slightly larger number at the end of 2009. 

Primarily responsible for its operation, our law enforcement personnel, who has extensive expertise performing detention functions—however, with little experience in the design or delivery or 

the acquisition and evaluation of detention facilities and community-based alternatives. 

In application, the operation of detention facilities was delegated 

to county sheriff departments and the private sector. On-site monitoring and annual evaluations were also performed primarily by 

the private sector. 

ICE lacked a number of the basic information and informational 

systems and critical planning and management tools necessary to 

operate a system of this size and magnitude. Instead, it employed 

a number of strategies to provide housing and health care but had 

difficulty sustaining detention and health care systems. 

In terms of the day-to-day operations, 24 field offices were responsible for the acquisition and assignment of detainees to beds. 

Decentralized acquisition and assignments impacted bed utilization, increased length of stay and numbers of transfers, and aggravated disparities between arrest activity and bed capacity. 

Conditions of detention varied by location. Access to services was 

limited, as was access to ICE officials difficult. Idleness was pronounced. The method and means by which aliens had opportunity 

to address grievances were lacking. 

Disciplinary decisions were largely delegated to facility providers. 

Still, untoward incidents by detainees were very few in number. 

Finally, the policies that ICE adopted and the practices that it 

employed imposed more restrictions and incurred more costs than 

were necessary to effectively manage most of the alien population. 

I earnestly believe that ICE wants to do better, and I see that it 

is taking steps in that direction. 

My report was written with one purpose in mind—not as a criticism of the current practices but an examination and an articulation of a vision for the future, a system about how we could succeed 

as Government. 

To that end, the report includes a number of key recommendations in seven areas—population management, alternatives to detention, detention management, programs management, health 

care, special populations, and accountability. 

Due to the unavailability of time, I won’t be able to touch on any 

of them now but perhaps can do so in the course of your questions. 

In closing, I would like to say that the report was intended to 

be vetted within the Department and ICE, by Congress and the 

many stakeholders and organizations, all of us committed to improvement. I appreciate your invitation for me to participate in this 

very important process. 
7 

[The statement of Ms. Schriro follows:] 

PREPARED STATEMENT OF DORA SCHRIRO

DECEMBER 10, 2009 

Good morning, Ms. Sanchez, Mr. Souder, and Members of the subcommittee. My 

name is Dr. Dora Schriro. I was privileged to serve as Special Advisor on ICE Detention and Removal Operations to DHS Secretary Napolitano and as the first Director of the Office of Detention Policy and Planning at ICE. I authored A Report 

on the Preliminary Assessment of ICE Detention Policies and Practices and A Recommended Course of Action for Systems Reform this past September. 

THE CHALLENGE AND THE OPPORTUNITY: A SYSTEM OF CIVIL DETENTION

As a matter of law, civil detention is unlike criminal incapacitation and yet, civil 

and criminal detainees tend to be seen by the public as comparable and typically, 

both confined populations are managed in similar ways by Government. Each group 

is ordinarily detained in secure facilities with hardened perimeters often in remote 

locations at considerable distances from counsel and their communities. With only 

a few exceptions, the facilities that U.S. Immigrations and Customs Enforcement 

(ICE) used to detain aliens were built, and operate, as jails and prisons to confine 

pretrial and sentenced felons. Their design, construction, staffing plans, and population management strategies were based largely upon the principles of command 

and control. Additionally, ICE adopted detention standards that were based upon 

corrections law and promulgated by correctional organizations to guide the operation of jails. Establishing standards and expressing expectations for civil detention 

are our challenge and our opportunity. 

INTRODUCTORY REMARKS

The commissioning and the release of the Report, is representative of this administration’s commitment to systems reform. The directive by Secretary Janet Napolitano within a week of her confirmation was plainspoken and heartfelt: To conduct 

a study and prepare a report that identified and addressed the root causes of concerns impacting detention and removal operations. Likewise, access to information, 

detention facilities, and the detainee population, was authorized without hesitation 

or equivocation by Assistant Secretary John Morton. It is their resolve that resulted 

in its publication and will produce the reforms to come. 

The information for this Report came from my tours of 25 detention facilities 

across the country; analyses of agency records, reports, and other documents; conversations with detainees and facility staff; meetings with over 100 non-governmental organizations; discussions with employees at the Departments of Homeland 

Security (DHS) and Justice (DOJ), Members of Congress and their staff and State 

and local elected officials; and studies authored by Government and others including 

the Government Accountability Office (GAO), Department of Homeland Security 

(DHS), the United Nations (UN), the American Bar Association, (ABA), and many 

non-Governmental organizations. I drew as well as upon my professional work history, research, and formal education, and training. 

CORE FINDINGS

The Report begins with a description of ICE detention and removal policy, procedures, and practices and continues with findings based upon analyses of its activities and outcomes. Here are several. 

• ICE operated the largest detention and supervised release program in the country. A total of 378,582 aliens from 221 countries were in custody or supervised 

by ICE in fiscal year 2008; activities in fiscal year 2009 remained at a similar 

level. On September 1, 2009, ICE detained 31,075 aliens. It supervised an additional 19,169 aliens in the community on alternatives to detention (ATD) programs. 

• On September 1, about two-thirds (66 percent) of the detained population were 

subject to mandatory detention. Approximately one-half (51 percent) were felons 

of which; around one-tenth (11 percent) had committed violent crimes. The majority (60 percent) of aliens in ICE custody were encountered when in criminal 

custody; about one-half (48 percent) of all admissions to ICE during the first 

6 months of fiscal year 2009 originated through the Criminal Alien Program, 

another 12 percent were identified through 287(g) partnerships. Although both 

of these programs focused on criminal aliens, many aliens encountered through 

them did not have criminal convictions. 
8 

• On average, an alien was detained 30 days however; time in detention varied 

appreciably between those pursuing voluntary removals and those seeking relief. As much as 25 percent of the detained population was released within a 

day of admission, 38 percent within a week, 71 percent in less than a month, 

and 95 percent within 4 months. Less than 1 percent of all admissions, about 

2,100 aliens, were held for a year or more. Due to differences in docket management, the time to disposition was appreciably longer for aliens assigned to alternatives to detention programs. 

• ICE lacked basic information and information systems and critical planning and 

management tools. It operated without benefit of cost models, site selection criteria, population forecasts and bed plans, validated custody classification and 

risk assessment instruments, a detainee locator system and daily count sheets, 

uniform medical and mental screenings and scores, electronic detention and 

medical record systems, capacity reports, etc. Where ICE employed other systems’ strategies, impact was often limited by application. 

• The acquisition and renewal of detention beds, the assignment of detainees to 

facilities and ATD programs, and the transportation of detainees between facilities were accomplished in the field by the 24 field offices. Decentralized acquisition, assessments, and assignments impacted bed utilization, increased lengths 

of stay and numbers of transfers, and aggravated disparities between arrest activity and bed capacity. 

• ICE was comprised primarily of law enforcement personnel with extensive expertise performing removal functions, but not in the design and delivery or in 

the acquisition and evaluation of detention facilities and community-based alternatives. The operation of detention facilities was delegated to county sheriffs 

departments and the private sector. On-site monitoring and annual evaluations 

were performed primarily by the private sector. ICE contracted with one vendor 

for on-site monitoring at 53 locations, representing a majority of beds but about 

one-sixth of the facilities it used. It contracted with another vendor to conduct 

an annual assessment of compliance with detention standards at all locations. 

ICE maintained some presence in most facilities, primarily by means of detention officers who performed case removal functions. 

• Fewer than 50 of those 300 facilities averaged 100 or more detainees daily with 

about one-half of the entire detained population secured in 21 locations. Facilities were designated by length of stay, with 93 percent of all beds approved for 

use for more than 72 hours. With the exception of families with minor children, 

special populations were dispersed. 

• Conditions of detention varied by location. Where facilities were occupied by 

both civil and criminal detainees ICE detainees, and particularly female detainees, were disadvantaged by more restricted movement and less access to programs. These conditions were compounded at locations where civil and criminal 

detainees were assigned to the same housing units. In general, idleness was 

pronounced. Access to legal services, recreation, religious activities, and visitation varied by facility location and operation. Detainees whose lengths of stay 

were longer were particularly impacted. The methods and means by which to 

address grievances were infirm. Disciplinary decisions were largely delegated to 

facility providers. Still, untoward incidents by detainees were few in number. 

• ICE utilized a variety of strategies to provide health care to the detained population but these strategies did not constitute a health care system. Detainees 

were assigned to detention facilities prior to assessing their health care requirements sometimes resulting in high-need detainees being placed at facilities with 

limited on-site health care or routine oversight. Health care records were not 

maintained or stored centrally. Medical summaries were not always provided 

when detainees were transferred. Approval of off-site health care was cumbersome and subject to delay. The assessment, treatment, and management of 

pandemic and contagious diseases were inconsistent. Some facilities were unable to manage large-scale outbreaks without impacting other locations’ operations. 

• The policies that ICE adopted and the practices that it employed, imposed more 

restrictions and incurred more cost than were necessary to effectively manage 

most of the alien population. 

KEY RECOMMENDATIONS

The Report was written with one purpose in mind: Not as a criticism of the current practices or as fuel for parties on either side of an issue, but as an examination 

and articulation of a vision for the future—a vision of how a civil system of deten-
9 

tion could be structured, organized, and calibrated to match the ICE mission and 

to ensure its success. 

To that end, the Report also outlined a framework of reforms and recommendations in seven areas necessary to the design and delivery of a system of civil detention. These seven components are Population Management, Alternatives to Detention, Detention Management, Programs Management, Health Care, Special Populations, and Accountability. Among its recommendations are these. 

• Population Management is the continuum and the conditions of control exercised by ICE over aliens in its custody and under its supervision from least to 

most restrictive, and the strategies by which aliens are managed pending their 

removal or relief. Humanely detain and supervise aliens in the least restrictive 

settings consistent with assessed risk and provide health care and other program services commensurate with identified needs. Make the size of the system 

manageable; reduce the total number of facilities, using only those whose design 

supports the delivery of care, custody and control for civilly detained general 

and special populations and otherwise meet enumerated expectations. Centralize procurement, regionalize oversight, and localize on-site supervision. 

Align facility locations and bed capacity with arrest activity, lengths of stay, 

and special populations. Locate facilities nearby consulates, pro bono counsel, 

EOIR services, and 24-hour emergency medical care. Develop a National system 

of transportation. Elevate detention duties within ICE as a distinct discipline 

to sustain its redesign and delivery. 

• Detention Management focuses on the core operating assumptions that affect 

conditions of civil detention. Use validated instruments to assess propensity for 

violence and need for health care and other services, and to inform assignment 

to facilities. Do not comingle custody classifications and civil with criminal detainees. Restrict transfers between judicial circuits and when detainees are represented by counsel, within circuits. Develop specialized caseloads. Reduce idleness; expand access to dayrooms and support space in other parts of the facility 

consistent with custody classification and comparable to other populations detained at that location. Ensure capacity is proportionate and appropriate to the 

size of the population. Monitor disciplinary practices; limit utilization of punitive segregation. Maintain contact with detainees regardless of location. Improve formal and informal on-site grievance processes. Provide timely translation services. 

• Alternatives to Detention (ATD) are the community-based supervision strategies that make up a significant portion of less restrictive conditions of control. 

Use validated instruments to assess and periodically reevaluate risk of absconding, and to inform the level and kinds of supervision to assign. Expand program 

capacity to serve those who are statutorily eligible and otherwise qualified. Enroll eligible aliens at the earliest opportunity; periodically reevaluate the detained population for eligibility. Utilize electronic monitoring only when risk of 

absconding warrants. Maintain an effective fugitive apprehensive response. 

• Health Care, including medical, mental health, and dental care, is a fundamental right of all detainees in ICE custody. Establish an integrated health 

care system for medical, mental, and dental health, with initial assessments, 

comprehensive examinations, and centralized medical records to inform facility 

and housing assignments, and timely and necessary care regardless of the anticipated date of removal or release. Convene a panel of health care professionals to establish standards of care for detainees. Maintain an infection control program and surveillance system. Integrate wellness activities and adopt 

preventive health care practices. Ensure medication is dispensed timely and 

medical diets are provided. Ensure compliance with ADA requirements. 

• Programs Management encompasses the design and delivery of law library and 

other activities affording aliens access to the court; indoor and outdoor recreation; family contact including visitation and communication by mail and phone; 

and religious activities. Allocate sufficient space and afford additional time to 

access programs. Provide translation services and programs in more than one 

language. Support family and attorney contact with improved visitation and 

mail service and lower phone cost. Expand the Legal Orientation Program. 

Comply with RLUIPA. 

• Special Populations include families with minor children; females; unaccompanied minors; the ill and infirm; asylum seekers; and other vulnerable populations. Consolidate special populations to improve delivery of special services 

and to lower cost. Modify population, detention, ATD, and programs management to meet their unique needs. Assign female staff to supervise female detainees or adopt knock-and-announce practices. Discontinue utilization of seg-
10 

regation cells for medical isolation and suicide observation. Select and assign 

aliens to appropriate facilities. 

• Accountability concerns the operating framework process and tenets for decision-making by which ICE provides oversight, pursues improvement, and 

achieves transparency in the execution of each part of its plan. Develop and 

adopt civil detention standards and operating procedures consistent with civil 

detention. Expand Federal oversight of key detention operations, track performance, and annually evaluate outcomes. Discontinue use of detention facilities 

that perform poorly. Assign on-site expert Federal employees of rank to oversee 

detention activities, to intercede whenever warranted, and to ensure the integrity of grievance and disciplinary processes. Optimize the presence of deportation officers with additional training and supervision. Create an office within 

ICE to receive and to respond to complaints and concerns. 

NEXT STEPS

The Report was written to be vetted within the Department and ICE, Congress, 

and the many stakeholders and organizations also committed to improvement. It is 

also important that the progress of recent months toward equipping ICE with management tools and a deeper understanding of detention policy, both critical to its 

mission, should continue. Some recommendations can be actualized quickly. Others 

may require further debate, additional analysis, and consideration. A number of 

them are already underway. Whether realized immediately or incrementally, these 

changes and this improvement are within our reach nonetheless and should be pursued. 

Thank you for this opportunity to appear before you. I welcome your comments 

and questions. 

Ms. SANCHEZ. Thank you so much. 

Now we will hear from Mr. Crane to summarize your statement 

for 5 minutes or less. Mr. Crane. 

STATEMENT OF CHRISTOPHER L. CRANE, VICE PRESIDENT, 

DETENTION AND REMOVAL OPERATIONS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL ICE 

COUNCIL–118 

Mr. CRANE. Madam Chairwoman Sanchez, Ranking Member 

Souder, Members of the subcommittee, good morning. 

Regarding the proposed detention reforms, I will begin by saying 

that the union and field managers were excluded from participating in their development, which we believe was a real mistake. 

The union has no detailed written information regarding the reforms. We can only address statements made by agency representatives during briefings on the reforms held in November of this year. 

While we applaud the idea of reform, agency proposals made 

known to the union appear to put detainees and officers at greater 

risk than ever before. ICE will build what it is referring to as lowcustody open-campus facilities that will house approximately 2,000 

detainees who are free to move throughout the respective facility 

24 hours a day. 

When ICE used the terms low-custody and open-campus, we initially envisioned non-criminal detainees only. However, according 

to agency representatives, the low-custody open-campus facilities 

will hold any convicted criminal not convicted of the following five 

charges—murder, rape, kidnaping, assault with a deadly weapon, 

and armed robbery. 

This list of charges does not exclude many other potentially dangerous groups of criminals from being placed in low-custody facilities such as drug dealers, gang members, sexual predators, and 

any person convicted of a violent crime that did not involve a weap-
11 

on. This would include aggravated assault and assault of a police 

officer. 

With the agency’s announcement that ICE will have a Nationwide detainee population of 85 to 90 percent convicted criminals 

within the next 12 months, we can only assume that these facilities 

will be holding similar populations. Surprisingly, our representatives were told that the non-criminal detainees will also be held in 

these same facilities. 

We do not believe that these facilities are truly low-custody detention, nor do we believe that they will provide the appropriate 

safeguards for non-criminal detainees. 

In terms of ICE employees, our concerns are similar. In the 

midst of criminal populations such as these, our officers should be 

afforded every safeguard afforded to any State or Federal officer 

working with criminal detainees. The open-campus environment is 

clearly unsafe and impractical. 

ICE has also—excuse me, proposed that detainees will have full 

contact visitation. However, unlike other agencies, ICE officers will 

be barred from performing strip searches to prevent dangerous 

weapons and drugs from entering ICE facilities. 

The council views this proposal as unacceptable based on the 

safety hazards it presents to ICE detainees, ICE officers, and contract guards. 

With regard to contract facilities and contract guards, DRO officers in the field report that inappropriate conduct by contract 

guards is not uncommon. 

The specific allegations made against the contract guards range 

from sexual misconduct with detainees and rape to the smuggling 

of illegal contraband into facilities such as illegal drugs. Officers report that ICE managers are aware of the problem but don’t seem 

interested in doing anything about it. 

We believe that the open campus environment will only make 

this type of conduct more prevalent as detainee populations will be 

free to move about the building unescorted, making them far more 

accessible to contract guards and this type of misconduct. 

In an attempt to provide better oversight in the facilities, the 

agency has proposed the hiring of 23 detention service managers. 

Such a small group is unlikely to have any significant impact on 

increasing oversight. 

Prior to ICE, there was a position within the Immigration and 

Naturalization Service called the Detention Enforcement Officer, or 

DEO. INS had officers to perform law enforcement functions as 

well as officers to perform detention, transportation, and court duties. 

It is a model that many law enforcement organizations continue 

to use with great success. We believe that DEOs would provide 

ICE’s National detention program with the increased physical presence and oversight that is currently lacking. 

Finally, I do not think it would be an exaggeration to say that 

the majority of problems within our detention system as identified 

by the agency involve contract workers and not Federal employees. 

For this reason, and because the administration’s professed opposition to unnecessary and inappropriate outsourcing, we were sur-
12 

prised to learn that on September 1, 2009 the agency awarded a 

new contract for $71.5 million to an outside contractor. 

These contractors will again be performing DRO work. in light 

of the problems we are now trying to overcome with regard to contract workers, we simply don’t understand the agency’s logic. 

Thank you for the opportunity to testify here today. I hope you 

found the information that we provided to you useful as you consider ways to improve the operations of the ICE DRO program. 

Thank you. 

[The statement of Mr. Crane follows:] 

PREPARED STATEMENT BY CHRISTOPHER L. CRANE

DECEMBER 10, 2009 

Chairman Sanchez and Members of the subcommittee: Good morning. My name 

is Chris Crane and I am the vice president of Detention and Removal Operations 

(DRO) of the National Immigration and Customs Enforcement Council 118 of the 

American Federation of Government Employees (AFGE). Council 118 is the union 

representing approximately 7,200 ICE employees who work primarily in Detention 

and Removal Operations. I have been an ICE Immigration and Customs Enforcement Officer for the past 6.5 years. During that time, I have observed many wellintentioned plans developed by this agency to improve operations, only to see them 

fail due to a lack of resources, commitment, or leadership. 

In my capacity as an ICE Immigration Enforcement Agent (IEA), I have worked 

the Criminal Alien Program (also known as CAP) for approximately 5 years. CAP 

is a program within ICE which targets criminal aliens who were first arrested by 

local police or other Federal law enforcement agencies and charged criminally. I 

have also served as a member of an ICE Fugitive Operations Team whose primary 

function was to apprehend foreign nationals who had not departed the United 

States after receiving an Order of Deportation from a Federal immigration judge. 

ICE DETENTION REFORM PLAN

Before commenting on the ICE DRO plan, I want to make clear that the Union 

has had no involvement in developing the detention reforms which are currently 

being proposed by ICE and the Department of Homeland Security. The Union 

learned of ICE’s plan to reform its detention facilities through a CNN broadcast. 

Since that time, our requests to participate in the planning or implementation of 

these reforms or provide any type of input have been unsuccessful. It was not until 

November 10–13, 2009, that three Union representatives attended briefings regarding the agency’s proposed reforms. Since no detailed written plans have been provided to the Council, I can only address verbal statements made by ICE and DHS 

representatives during these briefings, which were later communicated to me by 

union representatives who were present. 

The Union’s overall impression of these proposed reforms is not positive. We do 

not believe that the combined efforts of ICE and DHS have resulted in proposals 

that will effectively safeguard non-criminal ICE detainees or ICE employees. In fact, 

we are quite concerned that these proposed changes could potentially result in 

heightened risks for some groups of ICE detainees as well as ICE employees and 

contract guards. 

The agency has proposed the construction of multiple new detention facilities 

throughout the United States. Each facility will house approximately 2,000 ICE detainees. The detainees will be allowed to move freely throughout each of the new 

ICE detention facilities 24 hours a day. 

Phyllis Coven, Acting Director of the ICE Office of Detention Policy and Planning 

(ODPP) stated that one goal in constructing these new detention facilities would be 

to reflect living conditions that we might find in our own homes. While these measures clearly reduce security within ICE detention facilities, ICE has concurrently 

announced its goal of having a Nation-wide detainee population consisting of at 

least 85 to 90% convicted criminals within the next 12 months. 

Even though ICE has identified these new facilities as ‘‘low custody detention,’’ 

new screening procedures for ICE detainees will classify both criminal and noncriminal detainees as ‘‘low custody,’’ resulting in high criminal populations in these 

facilities mixed with individuals who have had little or no contact with police in 

their lives. With thousands of criminal detainees moving freely about each facility, 
13 

ICE’s ability to effectively observe, monitor, and control inappropriate behavior and 

safeguard detainees will be greatly diminished. Previously identified problems such 

as alleged sexual misconduct by contract guards with female detainees could rise 

as access to detainee populations will be increased in the open campus environment. 

FULL CONTACT VISITATION

ICE has proposed full contact visitation rights for detainees, but maintained its 

agency-wide ban on conducting strip searches. To our knowledge, ICE will be the 

only Federal or State agency to have such a policy. Agency representatives acknowledged that contraband smuggled into ICE facilities will increase. With detainee populations of 85% to 90% or greater convicted criminals, and the unstoppable presence 

of gangs, we believe that this policy on full contact visits without strip searches 

could dramatically increase the presence of illegal drugs and weapons inside ICE 

facilities. When questioned about the proposed full contact visits, agency representatives admitted that they were not aware of ICE’s agency-wide ban on strip searches 

and therefore did not consider that fact when creating the proposal of full contact 

visits. Union representatives and field managers present were unsettled by this disclosure. 

These proposed changes (and others like them) demonstrate not only a fundamental misunderstanding of who is housed in these facilities, but also indicate a 

stronger desire by the agency to create a harmonious environment, rather than a 

safe and efficient one. The lack of security and oversight within the new facilities 

will negatively impact both ICE detainees and ICE employees alike. In the midst 

of criminal populations such as this, AFGE simply does not understand why ICE 

employees will not be provided with the same security measures as State, local, and 

Federal law enforcement officers working in the jails and prisons around the Nation 

where ICE detainees were originally held on criminal charges. 

ICE DETAINEE POPULATIONS

The majority of ICE immigration-related arrests are presently generated by the 

ICE DRO Criminal Alien Program, and in some areas, its non-Federal counterpart, 

the 287(g) Program. This means the majority of ICE arrests and therefore the majority of individuals in ICE custody, come from county and State jails. These individuals were arrested by another law enforcement agency and charged criminally prior 

to ICE taking them into custody. This information would appear to be in conflict 

with public reports stating that only 50% of ICE detainees are convicted criminals. 

In fact, an ICE representative recently stated that only 53% of all ICE detainees 

have criminal convictions. However that same individual was unable to elaborate 

on the status of the remaining 47% of ICE detainees, as is frequently the case with 

public reports on the matter. Of the 47% of unaccounted for ICE detainees, the ICE 

Council believes that as many as 30% to 40% were arrested on criminal charges but 

released to ICE without prosecution because local jails and prosecutors Nation-wide 

are overwhelmed by the criminal alien problem and lack the resources to house and 

prosecute the arrestees. This has resulted in ICE becoming a dumping ground for 

individuals arrested on criminal charges who were never cleared of those charges 

in a court of law. 

CAP officers focus on individuals who have been arrested for serious crimes such 

as sex offenses, crimes of violence, and drug distribution. It is not uncommon for 

these prisoners to be released to ICE custody without conviction within 10 minutes 

to 24 hours following notification to the jail by ICE of the prisoner’s immigration 

status. Virtually none of these prisoners were released to ICE because they were 

cleared of the charges against them in a court of law, but rather because county 

and State detention facilities were overcrowded and underfunded. This is an epidemic problem Nation-wide. We believe that many of the ICE detainees who were 

arrested on criminal charges, but were never cleared of those charges in a court of 

law, do pose a significant threat to the public, our employees, and most certainly 

other ICE detainees who have no criminal history whatsoever. 

ICE should avoid implementing any policy that allows many of the very worst 

criminals to be released because jails in our local communities lack the funding to 

prosecute. Likewise, ICE cannot ignore the criminal arrest records of aliens without 

convictions when classifying them for detention or as part of any overall threat assessment. Arrest history and prior immigration history are typically the only records 

available to ICE officers as foreign nationals in the United States illegally generally 

have no other tangible records. Ignoring the criminal arrest records of detainees 

who were not cleared of their charges in a court of law is the equivalent of playing 

Russian roulette with the safety of the public, ICE officers, and most certainly the 

other detainees in ICE custody whose safety is our responsibility. The Union be-
14 

lieves that ICE leadership has an obligation to the American public and ICE employees to release more accurate statistics regarding detainee populations so that 

there can be transparent and informed discussion with respect to the threat level 

of ICE detainees and its impact on proposed detention reforms. 

ICE LOW CUSTODY FACILITIES

ICE and DHS defined ‘‘low custody’’ as any person who has not been convicted 

of one of the following five charges: Murder, rape, armed robbery, kidnapping, or 

assault with a deadly weapon. By that definition, any person who did not receive 

a conviction for one of those five offenses would be housed in the proposed low custody facilities. I will begin by saying that the last ICE detainee who assaulted me 

in a detention setting, and received a 13-month Federal sentence for assaulting a 

Federal officer, had never been convicted of any of these crimes. Furthermore, since 

he did not use a weapon in the commission of the assault, according to ICE’s proposed screening criteria, he would still be placed in a low custody ICE facility if arrested again. He would be housed with individuals convicted of non-violent crimes 

such as DUI or fraud. He may also be housed with individuals without a single arrest. He will freely move about the facility 24 hours a day with 2,000 other detainees who are almost all convicted criminals themselves. 

DHS stated that it is modeling the proposed ICE low custody facilities after a 

model currently in use by the Bureau of Prisons (BOP). It is our understanding that 

BOP prisoners housed in BOP low custody facilities have typically proven themselves over long periods of time (often years) to be trustworthy or rehabilitated before being placed in a BOP low custody prison. 

Conversely, the average custody time of an ICE detainee is just 6 weeks. This is 

often closer to 1 to 2 weeks. ICE DRO officers will not have years, but instead typically less than 1 full day to observe incoming detainees and screen them for low 

custody detention. DHS has proposed that an intake questionnaire be used to screen 

the detainees for placement in the low custody facilities. We believe that any questionnaire would have very limited success in ensuring that non-criminal detainees 

or unarmed Federal law enforcement officers working in these open campus criminal facilities would be safe. 

Similar detainee screening questionnaires currently in use by ICE have been ineffective. A recent article in The Houston Chronicle entitled ‘‘Criminal Deportees 

Often Fly Unescorted,’’ as well as formal complaints by Senator Mary Landrieu and 

Congressman Jason Chaffetz illustrate that fact. All discuss Threat Assessments; a 

screening document used by ICE DRO officers to determine if an ICE detainee who 

must be transported via commercial aircraft is a threat to the public and requires 

an officer escort. ICE DRO officers routinely utilize the threat assessment screening 

questionnaires and advise that certain detainees do pose a threat and recommend 

full officer escorts as a safety precaution, only to have ICE supervisors override 

these recommendations because of funding and manpower issues. The end result 

has been that ICE is now routinely placing dangerous convicted criminals 

unescorted on commercial aircraft. The screening questionnaire is ineffective because the recommendations of DRO officers are ignored. As cited in the news article, 

one unescorted ICE detainee recently charged the cockpit of a commercial jetliner 

and had to be restrained by passengers. 

ASSAULTS ON OFFICERS

ICE DRO officers are frequently assaulted by ICE detainees. Because the majority 

of our detainees come from local jails and State and Federal prisons, our employees 

are routinely exposed to some of the most dangerous criminals and gang members 

within the United States. ICE does little if anything to track these assaults or encourage our officers to file reports when they have been assaulted. Most assaults 

against ICE officers currently go unreported and are almost never prosecuted. 

AFGE is very concerned that ICE’s plans to abandon vital security protocols currently in place in detention facilities, while intensifying efforts to arrest criminal 

aliens, will undoubtedly place ICE officers and contract guards at greater risk. 

RELOCATING ICE EMPLOYEES

ICE has stated that the proposed detention facilities are to be built in new locations solely for the purpose of ensuring that detainees can be closer to their families 

for family visitations while in custody. ICE has stated that its employees will be 

forced to move when the new facilities are completed. If ICE’s proposals are implemented, ICE employees will be permanently uprooted from their families and communities in order to make visitation easier for ICE detainees who on average are 

in custody just 6 weeks—often times only 1 to 2 weeks. ICE employees will be forced 
15 

to take their children out of schools, give up their homes, leave behind aging parents and sick family members, and experience financial hardships in order to improve visitation for detainees who are in custody for 6 weeks or less. 

DETENTION ENFORCEMENT OFFICERS

The Immigration Enforcement Agent (IEA) position was created in 2003 following 

the establishment of ICE. IEAs have the same immigration arrest authority as ICE 

Deportation Officers and ICE Special Agents. The primary purpose of the IEA position was to take over the ICE Criminal Alien Program which was previously performed by ICE Special Agents. However, ICE also assigned IEAs to perform detention functions and transportation duties, which resulted in a substantial increase of 

work for the IEAs. It was the equivalent of rolling two full-time positions into one. 

As a result, both the Criminal Alien Program and ICE detention functions have suffered. It is a failure that ICE headquarters has been reluctant to acknowledge. 

Prior to ICE, a legacy Immigration and Naturalization Service (INS) position 

called the Detention Enforcement Officer (DEO) existed. This position did not have 

immigration arrest authority but did perform all of the full-time detention and 

transportation duties for INS detention facilities and offices throughout the United 

States. When the DEO position existed, job responsibilities were clearly defined. 

INS had officers to perform law enforcement functions as well as officers to perform 

detention duties. It is a model that the U.S. Marshal’s Service and many sheriffs’ 

departments have utilized very successfully for many years. The Marshals are able 

to perform both their law enforcement and detention missions effectively because 

unlike ICE they have maintained a separate position that manages detention, performs transportation functions, and provides court security. 

It is our belief that ICE made a critical mistake when it ended the DEO program. 

The heavy work volume and complexity of the Criminal Alien Program and failures 

within the ICE detention system have identified a clear need for ICE to have both 

IEAs and DEOs. DEOs would greatly improve DRO’s ability to perform its law enforcement and detention functions. Removing detention duties from the IEA position 

would drastically increase DRO’s ability to arrest criminal aliens and process cases 

in an efficient and expeditious manner. With regard to detention, DEOs would provide ICE’s National detention program with the increased physical presence and 

oversight that is currently lacking. 

PRIVATE CONTRACT DETENTION FACILITIES

With regard to the conduct of contract employees working with ICE detainees, I 

must state very clearly that I have not personally witnessed misconduct by contract 

workers, nor do I have access to information gained from agency investigations into 

these matters. The only information that I can pass on to this committee is that 

which I have been given from ICE officers in the field. 

With that said, I have been told that some contract workers in certain facilities 

have allegedly engaged in consensual sexual misconduct with detainees and it has 

also been alleged that there have been instances in which contract guards have 

raped female detainees. It is also alleged that contractors are smuggling contraband 

into the detention facilities. In areas near the southern border of the United States 

where contract workers also assist with the transportation of detainees, it has been 

alleged that contract guards have been involved in, and arrested for, smuggling foreign nationals into the United States. If any of these allegations are true, it certainly begs the question, ‘‘What is ICE doing to stop these problems?’’ As one veteran ICE officer stated to me last week, during a conversation regarding contract 

guards smuggling contraband into detention facilities in his area, ‘‘ICE managers 

are well aware of the problems in the contract facilities, but don’t seem interested 

in doing anything about it.’’ 

While this statement may surprise many in the American public, it would not surprise ICE employees who are well aware of problems within ICE management and 

the unethical manner in which ICE internal investigations are conducted. 

ICE INTERNAL INVESTIGATIONS

No checks and balances currently exist within ICE. ICE investigates itself. Because ICE investigates itself there is no transparency and there is no reform or improvement. ICE managers have complete control over the investigative process. The 

end result has been that both ineffective supervisors and supervisors engaged in 

misconduct are not disciplined, retain their positions, and are regularly promoted. 

ICE employees who voice their concerns about general problems, formally report 

more serious matters for investigation, or participate in the Union are relentlessly 

retaliated against by agency managers who rely on the ICE internal investigative 
16 

process as a tool for retaliation. The result has been a consistent decline in employee morale and widespread fear among employees to report wrongdoing. This 

contributes to the large-scale inefficiency that presently exists within the agency. It 

is our opinion that any attempts to reform the detention system will be unsuccessful 

without reforms that hold ICE managers accountable and protect employees from 

retaliation. 

On March 15, 2009, AFGE Local 3806 sent a letter to DHS Secretary Janet 

Napolitano informing her that problems existed within all ICE internal investigative processes, to include those conducted by the ICE Office of Professional Responsibility (OPR). Specifically, it was reported that no avenue currently exists for ICE 

employees to make whistleblower disclosures without fear of retaliation by the agency. On April 29, 2009, the Secretary’s office responded and stated that the matter 

had been turned over to the DHS Office of Inspector General (OIG). Also in April 

2009, the Union provided a copy of the letter to ICE Assistant Secretary John Morton. To date, the Union has never been contacted or received any communications 

from either Secretary Napolitano’s office or Assistant Secretary Morton. The DHS 

Office of Inspector General has also dismissed the concerns raised by the Union as 

the Union has never heard from anyone in that office to even acknowledge that it 

had received the complaint and that it would investigate the allegations. 

ICE OVERSIGHT

Oversight must be removed from ICE, otherwise ICE managers and senior leadership will continue to have complete control over the investigative process and the 

outcome. The end result will be no different than it presently exists today as management protects ineffective supervisors, conceals misconduct and mismanagement, 

and retaliates against employees who adhere to ICE policies on reporting malfeasance. 

As part of its proposed detention reforms, ICE has designated oversight of the 

ICE detention centers to its internal investigative division, the ICE Office of Professional Responsibility (OPR). It has already been well-established that internal policing simply does not work. This was evidenced in 1998 during the Internal Revenue 

Service hearings before the Senate Finance Committee where horrific testimony disclosed taxpayer and employee abuses that went unchecked because of the failures 

of the internal Inspection Services. As a result, the IRS Restructuring and Reform 

Act of 1998 was enacted and an independent investigatory office, the Office of Inspector General for Tax Administration, was created to remove investigative authorities from the agency. What was not considered, however, was that many of the 

Inspection Services investigators were moved to the newly-created organization and 

it took many years for the perception of the transplanted Inspection Services to 

change. It is our opinion that any internal oversight will not be objective as long 

as the agency is able to manipulate the investigative process. Again, oversight, to 

include that of ICE detention facilities, must be removed from ICE. 

DETENTION SERVICE MANAGERS

Another DHS/ICE proposal on detention reform will create 23 GS–14 positions 

called Detention Service Managers (DSM). Each of the 23 DSMs hired will monitor 

and enforce detention standards at ICE-owned facilities and contract facilities. Currently, these duties are supposed to be performed by contract employees called 

COTRs (Contract Officer Technical representative). ICE has made clear that it plans 

to eventually replace all of the Contract COTRs with DSMs. The Union and managers in the field appear to be in agreement that the Contractor COTRs are not providing adequate oversight of detention facilities utilized by ICE. However, we do not 

agree with the DSM remedy as proposed by ICE. Because of problems with Contract 

COTRs, ICE already sends ICE employees to COTR training out of a necessity for 

better oversight. ‘‘ICE Employee COTRs’’ are already performing oversight duties in 

the field. However, since these Contractor COTRs are currently designated by ICE 

as having the official authority of oversight, ‘‘ICE Employee COTRs’’ are not as effective as they could be. The Union proposes that by giving the current ‘‘ICE Employee COTRs’’ (who consist of both managers and employees) the same authority 

and training as the proposed DSM position, ICE could eliminate and replace far 

more than 23 Contractor COTRs—and ICE could literally do it overnight at less expense. In fact, agency representatives acknowledged during the briefing that current 

‘‘ICE Employee COTRs’’ would be providing on the job training to the newly hired 

GS–14 DSMs. We see the Union proposal as having the potential for far greater impact on detention reform in much less time. 
17 

ICE OFFICERS NOT PROPERLY UTILIZED

ICE DRO currently has two law enforcement officer positions which are the ICE 

Immigration Enforcement Agent (IEA) and ICE Deportation Officer (DO) positions. 

Both positions have full immigration arrest authority and their combined officer 

numbers account for a substantial percentage of the small number of law enforcement officers Nation-wide who have immigration arrest authority. Both positions 

are very limited in number and both are in high demand throughout the United 

States, especially as it pertains to criminal aliens. However, starting under the previous administration, ICE has initiated practices and policies that have greatly reduced the ability of ICE officers to provide much-needed law enforcement functions. 

Instead of providing adequate numbers of ICE support staff to perform clerical work 

and data entry, ICE has delegated these duties to ICE officers at the expense of 

their assigned law enforcement duties. 

In some areas such as the Texas Rio Grande Valley, hundreds of ICE officers are 

not being utilized to work the Criminal Alien Program in local jails and prisons. The 

majority of ICE DRO agents and officers throughout the United States are prohibited from making street arrests as ICE is more concerned about negative publicity 

than assisting State and Federal law enforcement agencies who attempt to reduce 

crime and gang activity in their areas. Likewise, ICE officers complain that when 

the danger levels of their duties are heightened, ICE does not allow officers to take 

needed equipment like shotguns because supervisors are more concerned about the 

possibility of negative publicity than the safety of their own officers. 

MANPOWER AND MORALE

With an existing workforce that is drastically understaffed and overworked, senior 

leadership continues to create massive new programs that will require hundreds if 

not thousands of new employees to successfully implement. However at ICE, manpower-intensive programs are simply implemented at the local and National level 

without any planning or consideration for the staffing and resources needed to accomplish them. 

ICE managers have already announced that ICE DRO is taking over the Law Enforcement Support Center (LESC), which will require DRO employees to man a 24- 

hour National call center to assist law enforcement officers from other agencies in 

the field. This added responsibility is only one of many that ICE plans to implement 

Nationally through a new program called Secure Communities. Secure Communities 

will require that 100% of all U.S. Citizens and non-citizens booked into every jail 

in the United States be screened in ICE databases. We anticipate that this will create an unprecedented and large-scale increase in the number of requests for ICE 

assistance as well as an equally large workload increase to ICE employees with the 

rise of ICE arrests, transportation duties, and needs for detention space. We have 

heard no proposals from the agency regarding the large-scale hiring that will be 

needed to perform these new duties. ICE does not have the manpower, resources, 

or funding to support what it is already doing, yet ICE continues to implement 

many new large-scale programs and initiatives, and ignores the warnings and grave 

concerns expressed by union officials, employees, and its own managers. 

Over the years, agency surveys of employee morale have consistently shown morale among ICE employees to be among the lowest of all Federal employees, something which ICE leadership has failed to address. Morale will continue to decline 

as ICE implements new programs but fails to consider its employees and the already heavy workload they carry. Many managers have never performed the duties 

that our employees currently perform, nor do they have experience with the tools 

and practices now in use to perform those duties. A complete disconnect exists between agency managers, their employees, and what’s happening in the field. Directives coming from ICE Field Offices (essentially District Offices) and ICE Headquarters appear to lack any input from the field, are often completely misguided and 

nonsensical, and create not only unnecessary work for ICE employees but also confusion and outrage. 

There is no uniformity or consistency throughout ICE as each Field Office creates 

its own fiefdom and makes its own rules. As just one example, pay practices are 

different in every ICE office across the country, and those practices change constantly. When the Union notifies the agency of legal violations regarding employee 

pay issues, we are ignored and forced to waste taxpayer dollars to litigate entitlements that are already granted by law. 

The negotiated agreement between the agency and the Union as well as Federal 

Statute is ignored and managers are not held accountable for their actions or inactions. The inaction by the agency to take care of its workforce demonstrates that 

it does not care about its most important resource. The agency’s Office of Employee 
18 

and Labor Relations lacks concern for consistent policies, productive human resources programs, effective labor-management relations, and fair and equitable 

treatment of employees. Rather than advise senior leadership and managers that 

laws, rules, regulations, and the negotiated agreement must be followed, it focuses 

its efforts toward supporting problematic managers who commit acts of misconduct, 

abuse their authority, and fabricate allegations and take unnecessary and excessive 

disciplinary actions against employees. 

PAY EQUITY FOR DRO EMPLOYEES

In October of this year, DHS Secretary Janet Napolitano suddenly and without 

warning, announced that approximately 50,000 Customs and Border Protection 

(CBP) officers would be noncompetitively promoted from GS–11 to GS–12. The much 

smaller group of approximately 2,000 ICE IEAs were excluded in this upgrade although efforts have been underway through attempted legislation for no less than 

2 years to raise their grades to GS–11. IEAs are assigned duties previously performed by GS–13 Special Agents and attend an academy that is lengthier than that 

of many of the CBP officers recently promoted to GS–12. IEAs have no career ladder 

promotions even though they share the same job series with GS–12 ICE Deportation 

Officers. ICE may be the only State or Federal law enforcement agency in the Nation that does not provide a career ladder to its own officers and instead hires less 

qualified candidates from other agencies for higher-paying nonsupervisory positions. 

Although the ICE Detention and Removal Assistants (DRAs) are only at the GS– 

7 pay grade there are no existing career ladder positions within the agency to afford 

them any opportunity to improve their livelihood through advancement and opportunity to move to other positions. For years it has been rumored that ICE will finally acknowledge the work of these employees and promote them because of the 

continuing assignment of more complex duties, yet the agency never acts. 

The agency has actively gathered work statistics from ICE Deportation Officers 

(DOs) for several years. A recommendation for promotion to the GS–13 grade level 

from the previous ICE Director of DRO to Assistant Secretary John Morton accidentally became public several months ago, but with years of research and recommendations from senior-level ICE managers, no changes were made and as a consequence this group was also ignored during Secretary Napolitano’s massive promotions. 

It is our opinion that DHS and ICE have failed for years to acknowledge the work 

of DRO employees and provide pay parity for its employees. To leave these highly 

deserving DRO employees out of this massive promotion demonstrates yet another 

failure by ICE, a failure that has taken morale to an all new low. ICE employees 

will now begin a mass exodus to higher-paying jobs in other agencies while at the 

same time qualified individuals who would otherwise apply for ICE entry-level positions will take their applications to the agencies who afford them advancement opportunity. 

OUTSOURCING OF EMPLOYEE WORK

Contrary to the mandates established by President Obama to return Federal employee work to the Government, ICE recently awarded a new contract in the amount 

of $71.5 million to an outside contractor. This contract, which is for services for the 

period September 1, 2009 through August 31, 2014, includes work that is currently 

performed by bargaining unit employees. The Union believes that the agency’s goal 

is to eventually eliminate the Detention and Removal Assistant (DRA) positions in 

ICE and will accomplish this goal through a reduction in hiring and attrition of the 

existing employees while simultaneously increasing contractor personnel to perform 

the DRA work. 

In a continuing repudiation of the existing negotiated agreement between management and the Union, the Union was first notified of this contract on September 

21, 2009 and only after the awarded contract execution date of September 11, 2009. 

During the briefing that was provided to the Union by ICE on September 21, 2009, 

officials attempted to convince us that this contract was not considered ‘‘contracting 

out’’ but rather ‘‘contracting in,’’ a newly-coined phrase by ICE management. The 

Union was also notified that provisions exist within the life of this contract to 

amend it to increase the scope and monetary value of the contract. 

CONCLUSION

I hope that my testimony here today provides the Members of this subcommittee 

with a clear view of the status of the DRO program at ICE. Clearly, there are problems and great risks associated with the Detention Reform Plan that have not been 

adequately considered. 
19 

Perhaps most troubling to the ICE Council is the fact that the Union, ICE employees, and managers in the field have been excluded from the development of the 

proposed detention reforms. While we always welcome new input, we are certain 

that no one possesses more knowledge regarding ICE detention than ICE employees. 

It is unthinkable that the Union and ICE employees have been excluded from this 

process. We certainly expected more from this administration. However, we remain 

optimistic and look forward to opportunities for participation in the future. 

We commend this committee’s efforts to bring oversight to the activities of this 

troubled agency, and unconditionally commit our resources to this or any future inquiries made by this honorable body. Thank you for allowing me the opportunity 

to speak on behalf of our ICE employees. 

This concludes my testimony, and I welcome any questions that you may have. 

Ms. SANCHEZ. Thank you, Mr. Crane. Thank you for your testimony. 

I now recognize Mr. Kerwin to summarize his statement for 5 

minutes or less. 

STATEMENT OF DONALD M. KERWIN, JR., VICE PRESIDENT 

FOR PROGRAMS, MIGRATION POLICY INSTITUTE 

Mr. KERWIN. Madam Chairwoman and distinguished Members of 

the subcommittee, I appreciate the opportunity to testify before you 

today. 

I will speak today on some of the challenges related to the design 

of a detention system that reflects ICE’s civil detention authorities. 

Detention serves two primary purposes—first, to ensure that persons in removal proceedings attend all of their hearings and can be 

removed if they are ordered removed, and second, to protect the 

public if necessary. 

Consistent with these goals, the central aim of detention reform 

should be to ensure that persons in ICE custody are placed in the 

least restrictive settings, which will typically be the least costly, 

that are necessary to ensure their appearances at all legal proceedings and to protect others. 

Under a civil detention system, ICE should carefully screen, classify, and treat detainees as follows. First, ICE should continue to 

detain persons who represent a danger to others. 

Eleven percent of ICE detainees with criminal records have committed violent crimes. ICE will need secure facilities to detain this 

population and others that represent a threat. But most ICE detainees do not have criminal records, and many of those with criminal records committed relatively minor crimes. 

Second, ICE should ensure that certain immigrants not be placed 

in removal proceedings and thus not be subject to detention. This 

would include refugees, persons eligible for lawful permanent residence, and those with credible claims to U.S. citizenship. 

Third, ICE should release detainees who are not a danger or a 

flight risk, particularly those whose cases raise humanitarian concerns such as bona fide asylum seekers, torture survivors, the very 

elderly, pregnant and nursing women. 

Fourth, ICE should continue to expand and improve its alternative-to-detention programs. While not appropriate for everyone, 

these programs can offer a cost-effective and humane alternative to 

detention. My written statement details several ways in which existing programs can and should be strengthened. 

Fifth, ICE must expand its efforts to identify alternative housing 

options for civil detainees. It should also aggressively explore and 
20 

adopt standards that reflect that—civil detention authorities and 

the needs of those in its custody. 

ICE’s National detention standards are broadly modeled on 

American Correctional Association standards for adult local detention facilities which apply to persons awaiting criminal trial or 

serving relatively short criminal sentences. 

Civil detention standards should ensure the separation of detainees based on a rigorous assessment of the risks that they present 

to others, prohibit the use of shackling, strip searches, handcuffing, 

solitary confinement and Tasers on non-violent detainees, preclude 

transfers that would negatively affect a detainee’s legal case or an 

attorney-client relationship, place detainees in facilities near legal 

counsel, allow contact visits with family members, and assure that 

those visits can go beyond the current 30-minute minimum, and 

provide for detainee access to outdoor recreation throughout the 

day and not just a minimum of 1 hour per day of exercise outside 

the cell. 

Finally, with respect to civil detention, ICE should be particularly vigilant in reviewing the custody of persons who have been 

confined for more than 6 months, particularly those ordered removed from the country. This would be consistent with the two 

U.S. Supreme Court decisions. 

In September 2009, my agency released a report that concluded 

that ICE’s information systems and, in particular, its ENFORCE 

database, did not appear to track the kind of information that 

would allow the agency to comply with the law or to meet its own 

detention standards. 

The report’s overarching recommendation was that ICE ensure 

that its information systems allow it to make informed decisions related to who it must detain and who it must consider for release, 

who should be placed in an alternative-to-detention program, and 

whether it had adhered to its National standards in particular 

cases. 

ICE should also expand its oversight, direct control, and monitoring of its own facilities and programs so that it can successfully 

implement its detention reforms. 

Private prison corporations manage all but one of ICE’s service 

processing centers and its largest contract facilities. Collectively, 

these facilities hold more than half of all ICE detainees. 

ICE also relies on private contractors to conduct most on-site 

monitoring of its detention facilities, to annually assess compliance 

with detention standards at its facilities, and to manage two of its 

three alternative-to-detention programs. 

ICE deserves praise for its decision to revamp its detention system, for its candid assessments of the challenges the agency faces, 

for its reforms to date and its engagement of stakeholders to date. 

Counsel needs to be vigilant, however, in helping to ensure that 

this process continues. Thank you. 

[The statement of Mr. Kerwin follows:] 

PREPARED STATEMENT OF DONALD M. KERWIN, JR. 

DECEMBER 10, 2009 

Madam Chairwoman and distinguished Members of the subcommittee, my name 

is Donald Kerwin and I am vice president for Programs at the Migration Policy In-
21 

1 U.S. Immigration and Customs Enforcement, ‘‘ICE 2009 Immigration Detention Reforms’’ 

(Fact Sheet, August 6, 2009), http://www.ice.gov/pi/news/factsheets/ 

2009limmigrationldetentionlreforms.htm. 2 Ibid. 

3Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations’’ (Washington, DC: Immigration and Customs Enforcement, October 6, 2009), 2–3, http://www.ice.gov/ 

doclib/091005liceldetentionlreport-final.pdf. 4Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities? (Washington, DC: Migration Policy Institute, 

September 2009), 22–23, http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf; Dr. 

Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 5–13. 

stitute (MPI). MPI is an independent, non-partisan, non-profit think tank 

headquartered in Washington, DC, and dedicated to the analysis of the movement 

of people world-wide. I appreciate the opportunity to testify before you today on the 

U.S. immigration detention system. 

On August 6, 2009, Homeland Security Secretary Janet Napolitano and the Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), John Morton, announced plans to restructure the Nation’s immigration detention system.1 On 

October 6, 2009, ICE released a report by Dr. Dora Schriro, the first director of 

ICE’s Office of Detention Policy and Planning (ODPP), which has been charged with 

designing a detention system based on the agency’s civil detention authorities.2 The 

report affirmed that ICE detention facilities: 

• have been ‘‘built, and operate, as jails and prisons to confine pre-trial and sentenced felons’’; 

• rely on ‘‘correctional incarceration standards designed for pre-trial felons and on 

correctional principles of care, custody and control’’; 

• ‘‘impose more restrictions and carry more costs than are necessary to effectively 

manage the majority of the detained population.’’3

As part of the new initiative, ICE intends to centralize management of its detention system, reduce its reliance on local jails and private prisons, and revamp the 

standards governing those in its custody. The Schriro report represented a milestone 

in agency candor. It also highlighted the challenges that ICE faces in transforming 

its detention system, including: 

• the diversity of ICE detainees by country of origin, gender, age, criminal history, immigration status, detention status, time in custody, and claims to remain; 

• the size of the system (nearly 380,000 detained in fiscal year 2008) and its sixfold growth since 1994; 

• the hundreds of facilities within ICE’s system, the multiple types of facilities, 

their geographic diversity, and the misalignment between detention capacity 

and demand; 

• ICE’s extensive alternative-to-detention programs; 

• the multiple enforcement programs that feed into the detention system, many 

of which ICE does not oversee or control; 

• longstanding problems in its information systems; and 

• the law enforcement culture of ICE detention staff and the criminal standards 

that govern its facilities.4

Given the early stage of the transformation process, it remains an open question 

how a civil detention system will differ from the current system. An initial challenge 

may be the lack of an analogous civil detention population. Suitable standards for 

immigrant detainees may differ markedly, for example, from standards that are appropriate for persons detained for mental health or public health reasons. As a preliminary task, ODDP should analyze potentially analogous civil detention systems 

in the United States, study immigrant ‘‘reception centers’’ and alternative housing 

models from other nations, and work closely with non-governmental organizations 

(NGOs) in developing suitable detention standards. 

This testimony will focus on three issues. First, it will discuss the need for discretion in placing persons in removal proceedings and, thus, subjecting them to detention. It will outline which immigrants should be eligible for alternative-to-detention 

programs and which should be detained and under what conditions. Second, it will 

highlight deficiencies in ICE’s information systems that must be remedied in order 

for detention reform to succeed. Third, it will describe the extent to which ICE relies 

on private corporations to manage its detention system, and the implications of privatization for ICE’s detention reform initiative. 
22 

5Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 3. 

6 Ibid., 6. 

7Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 20. 8Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 21. 

9 It should also be noted that ICE detainees have served whatever criminal sentence they have 

received prior to coming into ICE custody. 10 In recent months, ICE has placed lawfully admitted refugees who have committed no crime 

into removal proceedings because they have not adjusted to permanent resident status after a 

year in the country. 11Doris Meissner and Donald Kerwin, DHS and Immigration: Taking Stock and Correcting 

Course (Washington, DC: Migration Policy Institute, February 2009), 25, http:// 

www.migrationpolicy.org/pubs/DHSlFeb09.pdf. 12 Ibid. 13Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 6. 14 U.S. Department of Homeland Security, ‘‘ICE Detention Reform: Principles and Next Steps’’ 

(Fact Sheet, October 6, 2009), http://www.dhs.gov/xlibrary/assets/ 

pressliceldetentionlreformlfactlsheet.pdf. 15 Congress appropriated $70 million for alternative-to-detention programs in fiscal year 2010. 

Committees on Appropriation, ‘‘FY2010 Conference Summary: Homeland Security AppropriaI. CIVIL DETENTION: WHO SHOULD BE RELEASED, WHO DETAINED, AND UNDER WHAT

CONDITIONS?

The Schriro report recognizes the need to create ‘‘the requisite management tools 

and informational systems to detain and supervise aliens in a setting consistent 

with assessed risk.’’5 Building on this proposition, the goal of detention reform 

should be to ensure that persons in ICE custody are placed in the least restrictive 

setting necessary to ensure their appearances at all legal proceedings and, if necessary, to protect the public. Under such a system, ICE would carefully screen each 

detainee, classify them, and treat them as follows: 

First, ICE would continue to detain persons who represent a danger to others. 

ICE’s detention system contains persons with violent criminal histories who pose a 

threat to others. As of September 1, 2009, 11 percent of ICE detainees with criminal 

records had committed violent crimes.6 ICE will need secure facilities for this population. However, an MPI report found that 58 percent of persons in ICE custody on 

January 25, 2009 did not have criminal records and, of those with criminal records, 

the most serious convictions included traffic-related (13 percent) and immigrationrelated offenses (6 percent).7 According to the Schriro report, ICE detainees behave 

differently from criminally incarcerated populations. The majority are ‘‘motivated by 

the desire for repatriation or relief, and exercise exceptional restraint’’; ‘‘relatively 

few detainees file grievances, fights are infrequent, and assaults on staff are even 

rarer.’’8 For these reasons, less restrictive means of detention should be available 

to most immigrants, even those with criminal records.9

Second, ICE should ensure that certain immigrants not be placed in removal proceedings and, thus, not be subject to the detention regime. This list would include 

persons who are eligible for adjustment of status to lawful permanent residence, 

persons with credible claims to U.S. citizenship, and refugees.10 Overall, the Department of Homeland Security (DHS) should exercise discretion in placing persons in 

removal proceedings based on their immigration status, humanitarian and equitable 

factors, the severity of their offenses and likelihood of prevailing in immigration 

court.11 Like every successful law enforcement agency, ICE should assess ‘‘how most 

effectively to use its resources’’ and the ‘‘meaningful differences in culpability and 

equities’’ among those who are potentially subject to its authorities.12 Given the 

overwhelming demands on the detention system and immigration courts, persons 

who enjoy legal status, who will soon obtain status, or who otherwise are not likely 

to be removed should not be put into removal proceedings. 

Third, ICE should release detainees who are not a danger or a flight risk, particularly those whose cases raise humanitarian concerns. In fiscal year 2008, 51,000 detainees were released either through bond (29,000), an order of recognizance 

(12,000), an order of supervision (10,000) or parole (650).13 ICE has committed to 

developing an assessment tool to guide its decisions related to release, eligibility for 

alternative-to-detention programs and placement within its detention facilities.14

This tool should allow it to release bona fide asylum seekers, torture survivors, persons with strong family and equitable ties in the United States (particularly lawful 

permanent residents), pregnant and nursing women, primary caregivers, the elderly, families, survivors of human trafficking, and stateless persons and other detainees who cannot be removed. 

Fourth, ICE should continue to expand and improve its alternative-to-detention 

programs.15 Alternative-to-detention programs can offer a cost-effective, humane al-
23 

tions’’ (October 7, 2009), http://appropriations.house.gov/pdf/ 

HomelandlSecuritylFY10lConference.pdf. 16Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 6. 17Letter from Dr. Dora Schriro, Special Advisor, Office of the Assistant Secretary, U.S. Immigration and Customs Enforcement, to Donald Kerwin, Vice President for Programs, Migration 

Policy Institute (received July 2, 2009). 18 Ibid. 19 Ibid. 20 U.S. Department of Homeland Security, ‘‘ICE Detention Reform: Principles and Next Steps’’ 

(Fact Sheet, October 6, 2009). 21Susan Carroll, ‘‘Flaws found in options for immigrant detention,’’ Houston Chronicle, October 20, 2009. 22Megan Golden, Oren Root, and David Mizner, The Appearance Assistance Program: Attaining Compliance with Immigration Laws Through Community Supervision (New York: Vera Institute for Justice, 1998), 7–9. 23 U.S. Department of Homeland Security, ‘‘ICE Detention Reform: Principles and Next Steps’’ 

(Fact Sheet, October 6, 2009). 24Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 21. 25Oren Root, The Appearance Assistance Program: An Alternative to Detention for Noncitizens 

in US Immigration Removal Proceedings (New York: Vera Institute for Justice, 2000), 3–4; 

Megan Golden, Oren Root and David Mizner, The Appearance Assistance Program: Attaining 

Compliance with Immigration Laws Through Community Supervision, 10–13. 26See, e.g., Yong v. INA, 208 F. 3d 1116, 1118 (9th Cir. 2000) (release to a halfway house 

held to be a form of civil custody). 

ternative to detention, but they do not suit every detainee. Persons who represent 

a danger or a flight risk, even under the conditions of an alternative-to-detention 

program, should not be eligible for these programs. Likewise, alternative-to-detention programs are not appropriate for persons who would otherwise be released on 

parole, bond, supervision, or their own recognizance. 

As of September 1, 2009, ICE was supervising 19,160 people in its three alternative-to-detention programs.16 In July 2009, ICE reported to MPI that it does not 

collect ‘‘complete and accurate information’’ that allows it to assess the effectiveness 

or cost of these programs, and that ‘‘its previously released reports [were] sometimes 

incorrect.’’17 It nonetheless reported that 87 percent of the participants in its Intensive Supervision Appearance Program (ISAP), 96 percent of those in its Enhanced 

Supervision Reporting (ESR) program and 93 percent of those in its Electronic Monitoring (EM) program appeared for their removal hearings.18 It estimated direct program costs, not including ICE staff time, to be $14.42 per day for ISAP, $8.52 per 

day for ESR and between 30 cents and $5 per day for EM.19 By contrast, hard detention costs can exceed $100 per day.20 In October 2009, the Houston Chronicle reported that earlier ICE reports claiming 99 percent appearance rates for persons 

participating in the ISAP program did not include program participants whom ICE 

could not locate (i.e. absconders).21

While ICE record-keeping and information systems must improve, alternative-todetention programs cost far less than hard detention and can ensure high court appearance rates. For this reason, alternative-to-detention programs should be expanded. They should also be strengthened as follows: 

• The screening of program participants should be based on a more reliable assessment of risk. Screening has been shown to be crucial to the success of alternative-to-detention and supervised-release programs.22 As stated, ICE has committed to creating a risk assessment tool to determine who should participate 

in its alternative-to-detention programs.23

• The removal proceedings of persons in alternative-to-detention programs should 

be expedited. Rates of absconsion and costs will necessarily increase the longer 

participants remain in alternative-to-detention programs.24

• Alternative-to-detention programs should assist participants to secure legal 

counsel and otherwise to obtain accurate and timely information about the removal process. These factors have proven crucial to ensuring high court appearance rates.25

• Alternative-to-detention programs should be treated—particularly if they are 

strengthened in the ways set forth above—as alternative forms of detention, 

and thus opened to mandatory detainees. Mandatory detention laws broadly 

cover significant numbers of persons who, with proper supervision, would not 

be a flight risk. Given that 66 percent of ICE detainees must be detained,26 the 

significant expansion of alternative-to-detention programs—and the resulting 

cost savings to the Government and benefit to the affected individuals—will depend on whether alternatives to detention are found to be soft detention or constructive custody. 
24 

27 U.S. Department of Homeland Security, ‘‘ICE Detention Reform: Principles and Next Steps’’ 

(Fact Sheet, October 6, 2009). 28DHS subsequently added two more standards, bringing the (then) total to 38. 29 U.S. Immigration and Customs Enforcement, Operations Manual: ICE Performance Based 

National Detention Standards (PBNDS) (last modified October 7, 2009), http://www.ice.gov/ 

partners/dro/PBNDS/index.htm. 30 U.S. Immigration and Customs Enforcement, ‘‘Detention Management Program’’ (last modified February 20, 2009), http://www.ice.gov/partners/dro/dmp.htm. 31Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 10. 32 U.S. Department of Homeland Security, Office of Inspector General, Immigration and Customs Enforcement’s Tracking and Transfers of Detainees (Washington, DC: US Department of 

Homeland Security, Office of Inspector General, 2009), 6–9, 11, http://www.dhs.gov/xoig/ 

assets/mgmtrpts/OIGl09-41lMar09.pdf. 33Karen Tumlin, Linton Joaquin and Ranjana Natarajan, A Broken System: Confidential Reports Reveal Failures in U.S. Immigrant Detention Centers (Los Angeles: National Immigration 

Law Center, 2009), http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf. 34 Amnesty International, ‘‘Jailed Without Justice’’ (Amnesty International, March 2009), 30– 

36, http://www.amnestyusa.org/immigrant-rights/immigrant-detention-report/ 

page.do?id=1641033; Human Rights First, ‘‘U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison’’ (New York, NY: Human Rights First, April 2009), 55–59, http:// 

www.humanrightsfirst.org/pdf/090429-RP-hrf-asylum-detention-report.pdf. 35 Human Rights Watch, ‘‘Locked Up Far Away’’ (New York: Human Rights Watch, December 

2, 2009), http://www.hrw.org/en/reports/2009/12/02/locked-far-away; U.S. Department of 

Homeland Security, Office of Inspector General, ‘‘Immigration and Customs Enforcement Policies and Procedures Related to Detainee Transfers’’ (Washington, DC: U.S. Department of 

Homeland Security, Office of Inspector General, November 2009), 2–4, http://www.dhs.gov/ 

xoig/assets/mgmtrpts/OIGl10-13lNov09.pdf. 36Performance-Based Standards for Adult Local Detention Facilities, Fourth Edition (Lanham, 

MD: American Correctional Association, June 2004), 4. 37 Ibid., 99. 

Fifth, ICE should expand its efforts to identify alternative housing options for detainees, including the use of ‘‘converted hotels, nursing homes, and other residential 

facilities.’’27 It should also aggressively explore and adopt standards that reflect its 

civil detention authorities and the needs of those in its custody. It should collaborate 

with a wide range of stakeholders, including NGOs, in identifying alternative housing and developing appropriate standards. 

In September 2000, the Immigration and Naturalization Service (INS) issued 36 

National detention standards, covering security, the exercise of religion, medical 

care, visitation, telephone access, legal access, and transfers.28 In 2008, ICE announced plans to develop the performance outcomes that its National detention 

standards are intended to achieve.29 ICE will continue to phase in its performancebased standards—which include new standards on media interviews and tours, 

searches, sexual abuse, and staff training—throughout 2010.30

The National detention standards do not cover ICE detainees who are held in Bureau of Prisons (BOP) facilities. In addition, they do not apply in their entirety to 

the local jails covered by inter-governmental service agreements (IGSAs).31 IGSA 

agreements allow localities to establish ‘‘alternative’’ practices that ‘‘meet or exceed 

the intent’’ of different sections of most of the standards. Moreover, even when the 

standards apply, compliance remains spotty. Recent reports by the DHS Office of 

Inspector General (OIG) and respected NGOs have found: • non-compliance with standards related to detainee transfers, including with the 

requirement that detainees receive medical examinations within 14 days of arriving at a facility.32

• widespread violations of multiple standards based on a review of previously confidential assessments by ICE, the American Bar Association, and the United 

Nations High Commissioner for Refugees.33

• violations of the standards governing access to legal materials, legal orientation 

presentations, and attorneys.34

• exponential increases in detainee transfers in recent years, and the deleterious 

impact of transfers on legal representation.35

The ICE standards are broadly modeled on American Correctional Association 

(ACA) standards for adult local detention facilities, which apply to persons who are 

awaiting criminal trial or serving relatively short criminal sentences. In many particulars, the ACA standards are not suitable to immigrant detainees. For example, 

the ACA standards allow for only 25 square feet of ‘‘unencumbered space’’ for inmates in multiple occupancy rooms and only 35 square feet of ‘‘unencumbered 

space’’ for those confined in excess of 10 hours per day.36 The ACA access to counsel 

standard stipulates only that counsel is ‘‘ensured’’ and that inmates ‘‘will be assisted 

in making confidential contact with their attorneys,’’ a standard altogether inadequate for civil detainees who are not guaranteed counsel at Government expense.37
25 

38Standards for Adult Local Detention Facilities, Third Edition (Lanham, MD: American Correctional Association, 1991), 33. 39 U.S. Immigration and Customs Enforcement, Operations Manual: ICE Performance Based 

National Detention Standards (PBNDS), PBNDS 5, 13, 18, 29, 32, 37 and 41. 40Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 6. 41Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 19. 42 Ibid., 17. 43Zadvydas v. Davis, 533 U.S. 678, 701 (2001). 44Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities? (Washington, DC: Migration Policy Institute, 

September 2009), http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf. 

In other ways, ACA standards provide for more generous treatment than many ICE 

detainees receive, requiring for example that facilities be ‘‘geographically accessible 

to . . . community agencies, and inmates’ lawyers, families, and friends.’’38

More to the point, ICE and ACA standards are not generally appropriate to civil 

detainees. While hardly an exhaustive list, civil detention standards should: • ensure that ICE detainees can wear their own clothes, rather than prison uniforms; • provide for detainee access to outdoor recreation throughout the day, and not 

just a minimum of 1 hour each day of exercise ‘‘outside the cell, and outdoors, 

when practicable’’; • allow detainees to keep personal possessions with them, including family photographs; • guarantee that legal orientation presentations are provided to all detainees; • ensure the separation of detainees without criminal histories from those with 

criminal histories; • prohibit the use of shackling, strip searches, handcuffing, solitary confinement, 

and tasers on non-violent detainees; • preclude transfers that would negatively affect a detainee’s legal case or an attorney/client relationship; • place detainees in facilities near legal counsel and, for persons with special 

medical or other needs, near appropriate care; and • allow contact visits with family members and ensure that visits are not limited 

to the current 30-minute minimum.39

Sixth, ICE should be particularly vigilant in reviewing the custody of persons who 

have been confined for more than 6 months, particularly those who have been ordered removed from the country. According to the Schriro report, less than 1 percent 

of all ICE detainees are detained for 1 year or more.40 However, it does not follow 

that ICE does not have a significant number of long-term detainees in its custody. 

MPI found that 4,154 of those in ICE custody on January 25, 2009 had already been 

detained for more than 6 months as of that date.41 Of these, 992 had been detained 

for more than 6 months following receipt of a removal order.42 The latter is a particularly significant figure since the Supreme Court has held that detainees must 

be released within 6 months of a removal order unless the Government can show 

that there is ‘‘significant likelihood of removal in the reasonably foreseeable future.’’43

II. THE NEED TO STRENGTHEN ICE’S INFORMATION SYSTEMS

In September 2009, MPI released a report on the immigration detention system, 

titled Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?44 The report examines whether ICE’s information systems 

allow it to determine which detainees: • fall within ‘‘mandatory’’ detention categories, meet the narrow exceptions for release under these laws or ultimately will become eligible for release; • have a viable claim to U.S. citizenship; • have special medical conditions, mental illness, or disability, or other humanitarian issues that necessitate special care; • have been treated in compliance with the National detention standards; • are eligible for the custody review procedures available to persons who have 

been ordered removed, but who cannot be removed within 90 days; • constitute a risk to abscond (if released) or a threat to others, whether within 

the detention setting or outside of it. 

Over the years, Government and human-rights organization reports have harshly 

criticized ICE’s detention system for its failure to adhere to legal standards related 

to custody and release, and its failure to abide by its National detention standards. 

The MPI report raised the issue of whether ICE could comply with the law and adhere to its standards. Underscoring the need for reform, ICE disclosed on August 
26 

45 U.S. Immigration and Customs Enforcement, ‘‘ICE identification of previously un-tracked 

detainee deaths highlight importance of detention reform’’ (August 17, 2009), http:// 

www.ice.gov/pi/nr/0908/090817washington.htm. 46Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 10. 47 Ibid., 18. 48 Ibid., 14, 16–18, 22. 49 Ibid., 25–26. 50 Ibid. 51 ICE administers a custody review process for persons who have been ordered removed. It 

formerly administered a parallel process for ‘‘Mariel’’ Cubans who had been ordered removed. 

17, 2009 that 10 persons whose deaths had not previously been reported had died 

in its custody between 2004 and 2007.45

MPI’s report detailed the legally significant information that ICE does not appear 

to track. It also stressed the need for timely, accurate, and complete data entry into 

a consolidated database. As DHS’s Office of Inspector General has warned, absent 

timely data entry, ‘‘family members and legal representatives could be misinformed 

of the whereabouts of detainees’’ and ‘‘there is a potential risk of improperly accounting for dangerous detainees.’’46

The Schriro report recommends that ICE develop and implement standards and 

procedures ‘‘that specifically reflect the legal requirements of the detained population.’’47 The report also identifies other severe problems in ICE’s information systems. It concludes that: • the ‘‘reliability, timeliness, distribution, and storage’’ of detention information, 

including detainee complaints, ‘‘are not uniform and can hinder oversight’’; • ICE does not produce the kind of reports that ‘‘[c]omparable detention systems 

routinely rely’’ upon, including ‘‘a daily count sheet of all detainees in custody 

by facility, a roster of the population assigned to alternative-to-detention supervision, a current list of all detention facilities with information about their operating and emergency capacities, the number of beds that are vacant and off-line 

for repair and per-diem pricing’’; • the majority of computer entry screens are located at ‘‘centralized sites such as 

major facilities, field offices, and sub offices, and not at the places of detention, 

particularly IGSA locations’’ and, thus, ‘‘the recording of the book-ins and bookouts frequently occurs after the actual events’’; • ICE’s information systems do not allow the agency to make population ‘‘forecasts’’ for the purposes of planning or detention policymaking; • deportation officers, the primary ICE contact to detainees, do not consistently 

document their meetings with detainees; and • detainees are not always assigned new deportation officers when transferred.48

The health care provided to immigrant detainees has been a recurrent concern of 

Congressional oversight committees and human rights groups. The Schriro report 

recommends that ICE conduct ‘‘preliminary medical and mental health screening,’’ 

develop a system for ‘‘the medical and mental health classification for detainees’’ 

and routinely assess those ‘‘who remain detained or who exhibit signs of distress.’’49

It reported that the agency: • uses segregation cells to detain people with specialized medical needs, mentally 

ill persons, and persons on suicide watch; • provides only a brief mental health intake assessment that ‘‘does not lend itself 

to early identification and intervention’’; • has not developed a ‘‘mental health classification system’’; • lacks a policy related to ‘‘the maintenance, retention, and centralized storage of 

medical records’’ and does not move medical files when detainees are transferred; and • assigns immigrants to detention facilities prior to medical screening, and places 

them without reference to the proximity of necessary services or in appropriate 

facilities.50

MPI’s report on ICE’s detention information systems includes a series of detailed 

recommendations, which are incorporated by reference in this testimony and can be 

found at http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf. Many 

of these recommendations concern ICE’s principal database, known as ENFORCE. 

The report’s overarching recommendation (repeated here) is that: ‘‘ICE initiate a 

thorough inventory and review of its information systems, including ENFORCE, to 

ensure that they allow for informed decisions related to the substance and timing 

of: • who ICE must detain and who it must consider for release, with a particular 

focus on when ‘‘mandatory’’ detainees become eligible for release; • which detainees must be allowed to participate in ICE’s... post-removal 

order, custody-review processes;51
27 

52Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 25. 53Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 19. 54Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 15. 55Dr. Dora Schriro, ‘‘Immigration and Detention Overview and Recommendations,’’ 10. 56 Ibid., 14, 20. 57 Ibid., 15. 58 U.S. Immigration and Customs Enforcement, ‘‘ICE 2009 Immigration Detention Reforms’’ 

(Fact Sheet, August 6, 2009). 59Michael Flynn and Cecelia Cannon, ‘‘The Privatization of Immigration Detention: Towards 

a Global View (Geneva, Switzerland: Global Detention Project, September 2009), 16, http:// 

www.globaldetentionproject.org/fileadmin/docs/GDPlPrivatizationPaperlFinal5.pdf. 60 Ibid., 16–17. 

• who should be placed in ICE’s alternative-to-detention programs; and 

• ICE’s adherence to its National detention standards.’’52

III. THE CHALLENGE OF PRIVATIZATION

The Schriro report recommends that ICE ‘‘create capacity within the organization 

to assess and improve detention operations and activities without the assistance of 

the private sector.’’53 MPI found that private corporations played an immense role 

in the management of the immigrant detention system, operating not just their own 

prisons under contract with ICE, but also administering the largest county jails 

with which ICE contracts.54 According to the Schriro report, ICE holds roughly 50 

percent of its detained population in 21 facilities.55 As Exhibit 1 demonstrates, private corporations manage all but one of ICE’s own Service Processing Centers 

(SPCs) and its largest contract facilities: the one exception is managed by a county, 

not ICE. The report also indicates that the agency relies on private contractors to: 

• conduct most of the ‘‘on-site monitoring’’ of its detention facilities; 

• annually assess compliance with detention standards at the facilities ICE uses; 

and 

• manage two of its three alternative-to-detention programs.56

In addition, ICE field office directors and staff are not required to ‘‘routinely tour’’ 

detention facilities within their regions.57 In August 2009, ICE announced plans to 

hire 23 Federal employees to provide oversight (on-site) at 23 facilities, which hold 

roughly 40 percent of its detainees.58

A comparative review of the experience of several nations that use private prisons 

to detain immigrants argues for close Government oversight. On the one hand, private prisons have a ‘‘built-in [profit] motive to provide adequate services.’’59 If managed properly, private contractors can also provide a degree of flexibility that benefits the Government. However, poor accountability can result from: (1) Overly close 

ties between private prisons and Government decisionmakers; (2) lack of competition; (3) lack of oversight by civil society; and (4) the inordinate influence of private 

companies that seek to expand detention systems and weaken their regulation.60

The large-scale privatization of the ICE detention system complicates the reform 

initiative. ICE should adopt the Schriro report’s modest recommendation that it be 

able to assess and improve its detention system without outside assistance. ICE’s 

broader goal should be to expand its oversight, direct control, and monitoring of its 

own facilities and programs so that it can successfully implement its civil detention 

reforms. While a good preliminary step, the reforms announced by ICE to date— 

including the creation of ODPP and hiring 23 ICE employees to oversee certain facilities—will not ensure adequate oversight of ICE contractors. 

IV. CONCLUSION

ICE deserves praise for its decision to bring its detention system into line with 

its civil detention authorities, for its candid assessment of its detention system, for 

the creation of ODDP and for its other reforms. As the detention transformation 

process moves ahead, ICE should: 

• Analyze potentially analogous civil detention systems in the United States, 

study immigrant ‘‘reception centers’’ and alternative housing models in other 

nations and work closely with NGOs in developing suitable civil detention 

standards. 

• Ensure that persons in its custody are placed in the least restrictive settings 

necessary to ensure their appearances at legal proceedings and to protect the 

public. 

• Detain persons who pose a danger to others. 
28 

• Exercise discretion in placing persons in removal proceedings based on their immigration status, humanitarian and equitable factors, the severity of their offenses, and their likelihood of prevailing in immigration court. 

• Release detainees who are not a danger or a flight risk, particularly persons 

whose cases raise humanitarian concerns. 

• Expand and strengthen its alternative-to-detention programs by: Screening program participants based on a more reliable assessment of risk; working to expedite the removal proceedings of persons in alternative-to-detention programs; 

assisting program participants to secure legal counsel and otherwise to obtain 

accurate and timely information about the removal process; and treating alternative-to-detention programs as alternative forms of detention, and thus opening them to mandatory detainees. 

• Expand its efforts to identify alternative housing options for detainees, including the use of ‘‘converted hotels, nursing homes, and other residential facilities.’’ 

• Adopt standards that reflect its civil detention authorities and the needs of 

those in its custody. 

• Systematically review the custody of persons who have been confined for more 

than 6 months, particularly those who have been ordered removed from the 

country. 

• Initiate a thorough inventory and review of its information systems, including 

ENFORCE, to ensure that they allow for informed decisions related to the substance and timing of: Who ICE must detain and who it must consider for release, with a particular focus on when ‘‘mandatory’’ detainees become eligible 

for release; which detainees must be allowed to participate in ICE’s post-removal order, custody-review process; who should be placed in ICE’s alternativeto-detention programs; and ICE’s adherence to its National detention standards. 

• Expand its oversight, direct control and monitoring of its own facilities and programs so that it can successfully implement its civil detention reforms. 

EXHIBIT 1.—SELECTED 22 DETENTION FACILITIES THAT HOLD MORE 

THAN 50 PERCENT OF THE DETAINED POPULATION, FISCAL YEAR 2009 

State Private Contractor 

Service Processing Centers: 

Batavia SPC ..................................... Buffalo, NY ............ AHTNA Technical 

Services Inc 

(ATSI) 

El Centro SPC .................................. El Centro, CA ........ ATSI 

Florence SPC .................................... Florence, AZ ........... ATSI 

Krome SPC ....................................... Miami, FL .............. ATSI 

Port Isabel SPC ................................ Los Fresnos, TX ..... ATSI 

Varick Street SPC ............................ New York, NY ........ ATSI 

El Paso SPC ...................................... El Paso, TX ............ Doyon Akal Joint 

Venture Detention Center Services 

Aguadilla SPC .................................. Aguadilla, PR ......... MVM, Inc 

Contract Detention Facilities: 

Aurora ICE Processing Center ........ Aurora, CO ............. GEO 

Broward Transitional Center .......... Pompano Beach, 

FL.

GEO 

Northwest Detention Center ........... Tacoma, WA ........... GEO 

Pearsall ............................................. Pearsall, TX ........... GEO 

Elizabeth Detention Center ............ Elizabeth, NJ ......... CCA 

Houston Contract Detention Facility.Houston, TX ........... CCA 

Otay Detention Facility ................... San Diego, CA ....... CCA 

County Jail Facilities with IGSAs: 

Eloy Federal Contract Facility ........ Eloy, AZ .................. CCA 

Laredo Processing Center ................ Laredo, TX ............. CCA 

Stewart Detention Center ............... Lumpkin,GA .......... CCA 

Otero County Processing Center .... Chaparral, NM ...... MTC 

Willacy County Detention Center ... Raymondville, TX .. MTC 

Jena/LaSalle Detention Facility ..... Jena, LA ................. GEO 
29 

EXHIBIT 1.—SELECTED 22 DETENTION FACILITIES THAT HOLD MORE 

THAN 50 PERCENT OF THE DETAINED POPULATION, FISCAL YEAR 2009— 

Continued 

State Private Contractor 

Mira Loma Detention Center .......... Lancaster, CA ........ N/A; Los Angeles 

County Sheriff’s 

Department 

Sources: Dora Schriro, Immigration and Detention Overview and Recommendations (Washington, DC: Department of Homeland Security, October 6, 2009); website information of detention facilities and private contractors. 

Ms. SANCHEZ. Thank you, Mr. Kerwin. 

Now we will hear testimony from Ms. Nystrom. If you would 

please summarize your testimony in 5 minutes or less. 

STATEMENT OF BRITTNEY NYSTROM, SENIOR LEGAL 

ADVISOR, NATIONAL IMMIGRATION FORUM 

Ms. NYSTROM. Good morning, Madam Chairwoman and distinguished Members of the subcommittee. Thank you for the invitation to speak about our Nation’s immigration detention system. 

I currently serve as the National Immigration Forum’s senior 

legal advisor. Working with leadership from States, labor, business, 

and immigrant communities, the forum’s mission is to advocate for 

the value of immigrants and immigration to the Nation. 

Prior to joining the forum, I was legal director of a nonprofit organization providing legal services to those in immigration detention in county jails across Virginia. 

Although there are many concerns within immigration detention, 

my remarks this morning and my longer written testimony focus 

on two questions. Is it necessary for ICE to spend our tax dollars 

to detain so many individuals? For those persons who must be detained for security reasons, are detention conditions appropriate, 

efficient, and safe? 

To the first question, ICE detains many individuals who pose no 

flight risk or danger to the community and thus should be considered for release or an alternative-to-detention program. 

To the second question, the conditions of confinement for the 

hundreds of thousands of detained individuals each year are inappropriate, inefficient, and unsafe. Despite the civil basis of immigration detention, ICE houses its detainees in jails replete with 

barbed wire, prison uniforms, armed guards, and shackles. 

DHS leadership recently announced much-needed detention reform. Two steps must be taken to achieve these reforms. First, ICE 

must improve how it determines when detention is necessary and 

when a detainee merits release or enrollment in an alternative-todetention program. 

Second, ICE must transition to a detention system that is neither 

unsafe nor degrading for detainees. Improved detention management begins with two critical reforms—an examination of whom 

ICE is detaining and why, in tandem with expanded and improved 

alternative-to-detention programs. 

Today ICE detains more than 33,000 individuals a night, including elderly persons, torture survivors, parents of U.S. citizen chil-
30 

dren, and those with chronic health conditions. Despite this diversity, ICE has a one-size-fits-all model of detention. 

Each decision to detain should be informed by an assessment of 

individual circumstances that is repeated periodically. Otherwise 

detention becomes far too automatic and a wasteful use of Government resources. Without routine detention assessment, U.S. citizens continue to be swept into immigration detention. 

There are fiscally responsible and reliable alternatives. ICE currently operates three alternative-to-detention programs that rely on 

heavy supervision through GPS, radio, and telephonic monitoring. 

The most expensive of these programs costs $14 per day, while a 

day of detention at some facilities exceeds $100. 

Alternatives to detention can be improved. Currently programs 

operate as alternative forms of custody. Without standardized assessments, enrollment is haphazard. Further, there are no alternative-to-detention programs incorporating community-based services which can help ensure compliance with immigration proceedings. 

Congress has repeatedly ordered ICE to develop National alter- natives to detention and recently appropriated over $69 million to 

these programs. Going forward, ICE must improve alternative-todetention enrollment procedures and expand programs to include 

access to community services. 

More robust alternative-to-detention programs will lead to more 

manageable detention levels and a better use of limited security resources. 

In the second step, ICE must overhaul conditions of confinement 

to reflect the civil, non-punitive nature of immigration detention, 

shifting its culture from a correctional mentality to one more appropriate to the often vulnerable populations in its custody. 

Conditions in detention facilities used by ICE continue to be fundamentally inappropriate. Many facilities in use today are not 

physically capable of complying with ICE’s own detention standards. 

A DHS inspector general report recently noted the use of remote 

facilities and the overuse of arbitrary transfers denies detainees 

the basic right to a fair defense and wastes Federal resources. 

As noted, medical care remains a critical concern for immigration 

detainees and announced reforms come too late for many. DHS 

should prioritize the medically and mentally ill for release or enrollment in an alternative to detention. 

Immediate steps can and should be taken. ICE must follow these 

initial steps by revising their standards of detention to comport 

with the civil nature of immigration detention. Because standards 

are not codified in statute or regulations, ICE must be diligent in 

their enforcement. 

To conclude, ICE has failed to effectively manage its massive immigration detention system. The current system is one in crisis. 

The sweeping reforms recently announced are promising but are 

not fully developed. 

ICE should begin screening all detainees for release or alternative-to-detention programs. 

Next, ICE must overhaul standards of confinement so conditions 

are appropriately—are appropriate and are vigorously enforced. 
31 

Finally, as long as our immigration laws are out of step with the 

modern 21st Century realities, the task of managing immigration 

detention will be much more complicated and occur on a much 

greater scale than is necessary. 

Until we have comprehensive immigration reform, Congress 

should ensure that DHS transitions to a detention system that is 

right-sized, safe, humane, and efficient. Thank you. 

[The statement of Ms. Nystrom follows:] 

PREPARED STATEMENT OF BRITTNEY NYSTROM

DECEMBER 10, 2009 

Thank you for the invitation to speak about the immigration detention system. 

I have been advocating for improving detention laws, policies, and practices for a 

number of years. I currently serve as the National Immigration Forum’s Senior 

Legal Advisor. Working with leadership from faith, labor, business, and immigrant 

communities, the Forum’s mission is to advocate for the value of immigrants and 

immigration to the Nation. In my prior capacity, I was Legal Director for a nonprofit organization that provides legal services to individuals in immigration detention across Virginia. 

INTRODUCTION

The current immigration detention system has been hindered by poor management and deficiencies in oversight, problems that have been exacerbated by rapid 

increases in the number of individuals detained. Recently, the Department of Homeland Security has acknowledged that its detention system is disjointed, inappropriately reliant on the criminal incarceration system, and lacking in direct Federal 

oversight. Non-governmental organizations have described immigration detention as 

mismanaged, inhumane, and grossly lacking basic standards of due process to determine whether such extreme restrictions on a person’s liberty are necessary and justified. 

Although there are many issues within immigration detention that should be examined, I will focus my remarks on two concerns. First, Immigration and Customs 

Enforcement (‘‘ICE’’) does not consistently know whom it detains or why; many detainees pose no flight risk or danger to the community and are potentially eligible 

for release or enrollment in an alternative form of supervision. Next, the conditions 

of confinement for the hundreds of thousands of individuals who are detained by 

ICE each year are inappropriate, inefficient, and unsafe. Detention facilities are a 

patchwork of Federal facilities, privately owned facilities, and jails. Oversight is insufficient and ICE’s jailors violate the minimum standards of confinement frequently and with impunity. Despite the civil basis of immigration detention, ICE 

houses its detainees in jails replete with barbed wired, prison uniforms, armed 

guards, and shackles. 

Against this backdrop, the recent announcements of reforms to the immigration 

detention system by the Department of Homeland Security (‘‘DHS’’) and ICE are 

welcome. Concerned non-governmental organizations (‘‘NGOs’’) appreciate the opportunity to participate in creating and implementing needed reforms, yet challenges 

persist. 

Two sequential steps must be taken to achieve the reforms envisioned by the 

agency. First, ICE must reform protocols regarding who it is detaining and whether 

detention is necessary. Individuals should be automatically and consistently 

screened for release on recognizance, bond, parole, participation in alternatives to 

detention programs, or risk-appropriate housing assignments. Second, DHS, under 

the oversight of Congress, must design, manage, and rigorously monitor a truly civil 

detention system that can satisfy its interests while preserving the dignity and safety of those it detains. 

STATE OF AFFAIRS

The current disarray of the immigration detention system has been well-chronicled in numerous media stories, reports, and Congressional hearings. As the system 

has rapidly expanded—ICE detains more than six times the number of people it detained just a decade ago—DHS has failed to meet its management challenges, with 

sometimes fatal consequences. Over 100 individuals have died in immigration deten-
32 

1 Cam Simpson, More Immigration Detainee Deaths Disclosed, WALL STREET JOURNAL, 

Aug. 18, 2009, available at http://online.wsj.com/article/SB125055691948838827.html. 2Dana Priest and Amy Goldstein, Careless Detention, WASHINGTON POST, May 11–14, 

2008, available at http://www.washingtonpost.com/wp-srv/nation/specials/immigration/ cwcld1p1.html. 3These statistics were compiled from the following sources: Dr. Dora Schriro, Immigration Detention Overview and Recommendations, Department of Homeland Security, Immigration and 

Customs Enforcement, Oct. 6, 2009, available at http://www.ice.gov/doclib/ 

091005liceldetentionlreport-final.pdf and Donald Kerwin and Serena Yi-Ying Lin, Immigrant 

Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?, Sept. 

2009, Migration Policy Institute, available at http://www.migrationpolicy.org/pubs/ 

detentionreportSept1009.pdf. 4 Immigration and Customs Enforcement Assistant Secretary John Morton Holds Conference 

Call to Announce Major Reforms Planned for the Immigration Detention System, CQ Newsmaker 

Transcripts, Federal Agency, Aug. 6, 2009, available at http://homeland.cq.com/hs/ 

display.do?docid=3189020. 5The general detention group is further subdivided into groups focused on specific issues such 

as religious services and risk assessment tools. 

tion since 2003.1 A Washington Post investigative series in 2008 found that substandard medical care may have contributed to at least 30 deaths in immigration 

custody.2

Conditions of detention in ICE custody have been a source of controversy and dismay for years. Consistent complaints describe insufficient medical care, malfunctioning telephones, frequent transfers, disruptions in access to legal services, and severely limited visitation. A groundswell of reports, produced both by the Government Accountability Office, the DHS Office of Inspector General and DHS itself, as 

well as NGOs, demonstrates in great detail that the immigration detention system 

is in crisis. 

Although ICE’s assessments of those in their custody are not well developed or 

consistently executed, there are some statistical clues about the current composition 

of the detained population.3 According to ICE statistics, 91% of those in immigration 

detention on January 25, 2009 were men. On that same day, 58% of detainees did 

not have criminal convictions. Approximately 40 families were in family immigration detention centers on October 6, 2009. Roughly 1,400 asylum seekers with no 

criminal convictions are detained daily. 

The Secretary of Homeland Security and the Assistant Secretary of ICE pledged 

in two recent public announcements to overhaul the current detention system. The 

initial announcement on August 6, 2009 was followed by a second, 2 months later, 

on October 6. The latter was coupled with the release of a report by Dr. Dora 

Schriro, most recently Director of the ICE Office of Detention Policy and Planning, 

titled ‘‘Immigration Detention Overview and Recommendations.’’ Relevant components of the announced reforms include: Formal engagement with local and National stakeholders, development of risk assessment and custody classification mechanisms, implementation plans for National alternatives to detention, revision of detention standards to create consistent and appropriate conditions, and Federal oversight of detention facilities. ICE describes the time line of these reforms as stretching over 3 to 5 years.4

COLLABORATION WITH NGOS

While ICE has begun strengthening collaborative relationships with NGOs to effect detention reforms, significant challenges remain. Local and National NGOs 

have organized themselves into two ‘‘advisory groups’’ or ‘‘working groups.’’ These 

groups are broadly arranged into general detention issues 5 and detention-related 

health care issues. Initial meetings between these groups and ICE have occurred 

and future meetings are scheduled. The collaborative potential inherent in these 

working groups is rich, but has not been fully reached. ICE’s meaningful engagement with NGO groups early in the planning process is critical to foster substantive 

discourse and help shape successful reforms. 

Perhaps the most basic challenge in forging deep and meaningful NGO participation in the detention reform process is the delay in implementation of the announced reforms. NGOs that work with detained immigrants across the country report that they have yet to experience any significant shift in detention management 

on the ground. The single documented change is the transformation of the troubled 

T. Don Hutto facility in Texas from a family detention facility to a women’s detention facility. The lack of tangible changes in detention operations does not reflect 

the ambitions of the announcements, therefore creating a disincentive for NGOs 

with limited resources and capacity to engage in a process that has thus far produced minimal results. 
33 

6 Andrew Becker, Second immigration official leaves new Federal office, Center for Investigative Reporting, Oct. 23, 2009, available at http://www.centerforinvestigativereporting.org/ 

blogpost/20091023secondimmigrationofficialleavesnewfederaloffice. 7Schriro report at 6; Immigrations and Custom Enforcement Policies and Procedures Related 

to Detainee Transfers, DHS Office of Inspector General, OIG–10–13, Nov. 2009, available at 

http://www.dhs.gov/xoig/assets/mgmtrpts/OIGl10-13lNov09.pdf. 8Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United 

States, Human Rights Watch, Dec. 2009, at 16–17, available at http://www.hrw.org/en/ 

reports/2009/12/02/locked-far-away-0. 9Department of Homeland Security, Office of Inspector General, Immigration and Customs 

Enforcement: Detention Bedspace Management, OIG–09–52, April 2009, available at http:// 

www.dhs.gov/xoig/assets/mgmtrpts/OIGl09-52lApr09.pdf; Department of Homeland Security, Office of Inspector General, Immigration and Customs Enforcement’s Tracking and Transfers of Detainees, OIG–09–41, March 2009, available at http://www.dhs.gov/xoig/assets/ 

mgmtrpts/OIGl09-41lMar09.pdf. 

The untimely departure from ICE of key detention reform personnel has presented an additional challenge. Two high-ranking officials departed the Office of Detention Policy and Planning shortly after the office was created. Dr. Dora Schriro 

conducted scores of meetings with NGOs, toured dozens of facilities, and drafted an 

evaluation of the immigration detention system before her departure from DHS in 

September. Her report conveyed many of the concerns and recommendations shared 

with her by NGOs. To date, we have not seen evidence that ICE intends to implement all of the recommendations Dr. Schriro made in her report. Next, a permanent 

replacement for Dr. Schriro has not been named. Additionally, a second member of 

the Office of Detention Policy and Planning had just begun to delve into detainee 

health care issues when she departed only a few months after her arrival.6

The lack of formal collaboration between ICE field offices and local NGOs presents an additional challenge. Under the current working group structure, the ability of organizations with first-hand experience and technical expertise located outside of the District Columbia to fully participate in the reform process is limited. 

ASSESSMENT OF THE DETAINED POPULATION

ICE should base its reforms on the basic premise that detention is not the only 

method to achieve security and compliance objectives. Currently, ICE detains more 

than 33,000 individuals each night.7 This number includes men, women, and children. It includes detainees who are elderly, who have chronic health conditions, and 

who are pregnant or nursing. It includes parents of U.S. citizen children. It includes 

individuals who crossed the desert a month ago and individuals who have lived lawfully in the United States for decades. It includes a small number of individuals who 

committed crimes and completed their sentences, and a large majority of individuals 

who have not committed any crime. Despite this diversity, ICE defaults to a onesize-fits-all model of detention. DHS currently does not have a risk assessment tool 

to determine who should be detained and who merits release. Each decision by ICE 

to detain an individual should be an informed and careful determination taking into 

consideration: (1) Prohibitions from arbitrary detention found both in U.S. law and 

international law, as well as (2) prudent use of Government resources. Those who 

pose no threat to public safety or risk of flight should not be detained. 

As a first step toward improved management and positive reform, ICE must examine whom they are detaining and why. A front-end risk assessment, repeated at 

periodic intervals, would aid the agency in determining when detention is necessary, 

and would help eliminate arbitrary detention. In the absence of a risk assessment 

or classification instrument, detention becomes far too automatic and those detained 

are left shouldering the burden of showing why they merit release. The immediate 

need for initial and on-going detainee assessment tools is urgent. As one example, 

ICE admittedly lacks both sufficient medical and housing classification systems. 

Further, detainees and their advocates commonly report delays in the issuance of 

charging documents after being taken into custody by ICE, a practice that results 

in individuals being detained with no notice of the alleged violations they face.8

Additionally, internal ICE processes for reassessing the circumstances of those in 

its custody must be improved. ICE’s compliance with legal limits on indefinite detention are so inefficient that detainees often must resort to filing habeas corpus petitions in Federal district court to effectuate their release. Further, the DHS Inspector General found in two 2009 reports that ICE inaccurately recorded and tracked 

the mere location of detainees.9

One alarming consequence of ICE’s failure to adequately assess its detained population is the on-going, and unlawful, detention of U.S. citizens as recounted in the 
34 

10Thirty-eight percent of immigration lawyers studied in Minnesota reported that within the 

past 2 years they had represented at least one U.S. citizen who was in immigration detention. 

Jacob Chin, Katherine Fennely, Kathleen Moccio, Charles Miles, Jose D. Pacas, Attorneys’ Perspectives on the Rights of Detained Immigrants in Minnesota, Nov. 2009, available at http:// 

lawprofessors.typepad.com/files/final-cura-article-11-10-09.pdf. See also Kristin Collins, N.C. 

Native Wrongly Deported to Mexico, CHARLOTTE OBSERVER, Aug. 30, 2009, available at 

http://www.charlotteobserver.com/local/story/917007.html; Robert Zullo, Despite Citizenship 

Claims, Woman Shipped to Honduras, THE THIBODAUX DAILY COMET, June 14, 2009, available at http://www.dailycomet.com/article/20090614/ARTICLES/906141011?Title=Despite-citizenship-claims-woman-shipped-to-Honduras; Daniel Hernandez, Pedro Guzman’s Return, LA 

WEEKLY, Aug. 9, 2007, available at http://www.laweekly.com/2007-08-09/news/pedroguzman-s-return/. 11Written testimony of Kara Hartzler, U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Immigration, Feb. 13, 2008, available at http://judiciary.house.gov/ 

hearings/pdf/Hartzler080213.pdf. 12Zullo, Despite Citizenship Claims, Woman Shipped to Honduras. 

media, NGO reports, and in Congressional testimony last year.10 The Florence Immigrant and Refugee Rights Project in Arizona in 2008 alone witnessed more than 

40 cases of persons in immigration detention each month with potentially valid 

claims to U.S. citizenship.11 The Northwest Immigrant Rights Project in Seattle has 

documented 21 cases in the past 3 years of U.S. citizens who were detained by 

ICE.12 ICE has no authority to deprive liberty to a U.S. citizen, but without a 

thoughtful, front-end assessment of all individuals taken into custody, this will continue. 

A second illustrative example of the need for improved assessments is the many 

special populations who linger in detention. One such population is arriving asylum 

seekers, over whom ICE wields sole authority to grant release from detention in the 

form of parole. Those asylum seekers who are granted parole are released into the 

care of a family member, friend, or community organization while their immigration 

hearings are pending. Immigration judges have no review authority of ICE’s discretionary parole determinations. Dr. Schriro’s report asserted that internal guidance 

on parole decisions is under review. As the agency undertakes its review process, 

it should ensure that all individuals are afforded an individualized assessment as 

to whether detention is necessary before they are deprived of their liberty. 

Further evidence of the inappropriate use of detention is a spate of high-profile 

cases where the severely ill, disabled, or pregnant individuals are kept in custody. 

Perhaps most alarming are allegations that detainees have died in immigration custody due to preventable medical causes; these allegations have prompted litigation 

and public outcry. 

DHS has acknowledged that developing an effective risk assessment procedure is 

a needed reform and has announced a pursuit of detention strategies based on ‘‘assessed risk.’’ One of four key recommendations in Dr. Schriro’s report was that ICE 

develop a ‘‘new set of standards, assessments, and classification tools’’ in coordination with stakeholders. Her report also finds, ‘‘The ideal system should create the 

capacity to detain and to supervise aliens consistent with assessed risk.’’ However, 

the requisite tools to determine risk among the detained population are still under 

development. The NGO community should be tapped as early in the process as is 

feasible to actively assist in the development process. 

The fundamental importance of a detention system keyed to assessed risk of individual detainees must not be overlooked. Assessment of risk is a crucial component 

of a well-managed detention system as this determination informs decisions regarding release, bond determinations, parole decisions, participation in alternatives to 

detention, or for those who are found to require continued detention, appropriate 

housing assignments, and medical care needs. ICE must conduct an automatic and 

consistent assessment at the outset of detention, and revisit this assessment periodically, of the current or on-going need to deprive any particular individual of his or 

her freedom. 

ALTERNATIVES TO DETENTION (ATDS)

Expanding on the recommendation above, ICE must increase and improve its utilization of Alternatives to Detention (‘‘ATD’’) programs. These offer economical and 

reliable means of ensuring compliance with immigration proceedings. One enormously beneficial application of the risk assessment tool already discussed is ICE’s 

gained ability to properly reach release or ATD enrollment decisions. 

Detention is not mandatory for everyone in immigration proceedings and ICE 

should pursue a continuum of discretionary options in making custody determinations, dependent on an individual detainee’s circumstances. While current options 

range from continued detention as the highest form of custody, to electronic moni-
35 

13Schriro report at 20; H. Rpt. 111–298, available at http://thomas.loc.gov/cgi-bin/cpquery/ 

?&dbname=cp111&sid=cp111650mg&refer=&rln=hr298.111&item=&sel=TOCl224515&; Public Law 111–83, available at http://frwebgate.access.gpo.gov/cgi-bin/ 

getdoc.cgi?dbname=111lconglpublicllaws&docid=f:publ083.111. 14 H. Rpt. 111–298 and Public Law 111–83. 15The Vera Institute of Justice conducted a pilot alternative program from 1997–2000 that 

reported a 93% appearance rate. LIRS coordinated another alternative model that achieved a 

96% appearance rate. Both programs included community support. U.S. Detention of Asylum 

Seekers: Seeking Protection, Finding Prison, Human Rights First, April 2009, at 64, available 

at http://www.humanrightsfirst.org/pdf/090429-RP-hrf-asylum-detention-report.pdf. 16 Human Rights First report at 63. 

toring programs similar to ‘‘house arrest,’’ to setting bond, to release on one’s own 

recognizance, ICE lacks a systemic and effective method for placing individuals into 

appropriate programs. Where flight risk poses the only concern, ICE should immediately contemplate whether that risk could be effectively mitigated by setting a 

bond, releasing to family, or supervision. 

ICE currently operates three ATD programs: Intensive Supervision Appearance 

Program (ISAP II), Enhanced Supervision Reporting (ESR), and Electronic Monitoring (EM). In each program, participants are heavily supervised using a combination of global positioning systems, radio frequency, and telephonic monitoring. Beginning in 2008, Congress has repeatedly ordered ICE to provide an implementation 

plan for a National ATD system.13 More recently, Congress appropriated over $69 

million for ATD programs.14

Support from Congress for ATD programs represents an opportunity for ICE. Simple expansion of current programs is not sufficient. Successful ATDs would contemplate and address the assessed risk and needs of each individual. Yet, there are 

no current ATDs that utilize community-based organizations and services. There is 

no review process for decisions rejecting a detainee for participation in an ATD. Nor 

do existing programs include a reassessment of risk as an individual’s case proceeds. 

To maximize success, ICE must expand the available ATD programs to include access to community organizations. Assistance upon release, such as legal and housing 

services, can help ensure compliance with immigration proceedings.15 For example, 

community assistance can help released individuals understand how to meet responsibilities regarding their cases. 

ICE should utilize rigorous criteria in determining whether to detain, release, or 

enroll an individual in an ATD program. None of the Requests for Proposals issued 

by ICE for the current programs articulate enrollment criteria. ICE should prioritize 

the release of vulnerable detainees, such as individuals with on-going medical or 

mental health needs. Contrary to current practice, asylum seekers should always be 

assessed for potential release through an ATD.16

In revisiting program design, ICE also has the chance to address shortcomings in 

how ATDs as they now exist are implemented. As currently operated, ATDs rely on 

intense supervision and restrictions on movement and liberty; they serve as alternative forms of custody rather than a true alternative to detention. Critical to the 

success of any ATD, ICE must develop standards for selecting individuals into an 

ATD with the appropriate level of supervision and for determining compliance with 

the program. Conditions or restrictions on release must be reasonable based on an 

individualized assessment. These standards should be directly implemented and enforced by ICE to ensure that the programs achieve desired outcomes and are uniformly operated. 

Importantly, ATDs should be contemplated only after it has been determined that 

an individual is not eligible for another form of release. Explicit and standard criteria would ensure that individuals receive the appropriate level of supervision. At 

the very minimum, ATDs, as conceptualized, can be an effective, fiscally responsible, 

and more humane method for monitoring individuals who may have legitimate immigration claims and for whom detention is unreasonably burdensome, such as asylum seekers, families, and the infirm. ICE has a great opportunity to implement 

them as such by incorporating these recommendations. More robust and effective 

ATD programs will also lead to more manageable detention levels and a better use 

of limited security resources. 

EXPECTED GROWTH IN DETENTION DEMAND

DHS initiatives collaborating with local law enforcement agencies increasingly 

contribute to the vast population of immigration detainees, most of whom do not 
36 

17 According to ICE statistics, the majority of individuals booked into immigration detention 

through the 287(g) program or the Criminal Alien Program, have no criminal convictions. 

Schriro report at 13. 18Schriro report at 10 (counting approximately 240 IGSA facilities); OIG report, Detention 

Bedspace Management, at 2 (counting more than 350 IGSA facilities). 19MPI report at Figure 4. 20Minnesota report; Jailed Without Justice: Immigration Detention in the USA, Amnesty 

International, March 2009, at 41–42, available at http://www.amnestyusa.org/uploads/ 

JailedWithoutJustice.pdf. 21 Amnesty report at 37. 22Minnesota report. 23Police Assessment Resource Center, The Los Angeles County Sheriff’s Department 28th 

Semiannual Report, Oct. 2009, at 41, available at http://www.parc.info/clientlfiles/LASD/ 

28th%20Semiannual%20Report.pdf. 24Minnesota report; Amnesty report at 35–36. 25Minnesota report. 

have criminal convictions and should be considered for alternative programs.17 The 

need to assess the incoming population and utilize alternatives to detention when 

appropriate is becoming urgent. DHS detention reform initiatives are at risk of 

being outpaced by Federal and local programs that seek to identify alleged immigration law violators through the criminal justice system. The impending National activation of the Secure Communities initiative and other similar operations are indisputably one factor driving the need for ICE to assess its current population, explore 

alternatives to detention when appropriate, and identify capacity to appropriately 

house the expected influx of detainees. 

MEANINGFUL AND APPROPRIATE STANDARDS FOR CONDITIONS OF DETENTION

Conditions of immigration detention should reflect its civil, non-punitive basis and 

be tailored to the agency’s assessments regarding who is being detained, why they 

are being detained, and whether those in detention have special needs. ICE must 

also shift its culture from one that is dominated by a law enforcement or correctional mentality to one that appropriately addresses the diverse and often vulnerable populations in their custody. 

The sheer number and variety of facilities used by DHS pose a serious challenge 

to successful, uniform management. DHS houses detainees in both short-term facilities designed for temporary use, such as holding individuals apprehended along the 

border or deportation staging centers, and in facilities that provide prolonged detention to individuals as their cases as considered. The current constellation of longterm detention facilities consists of seven Service Processing Centers owned by ICE 

and operated by private industry, seven Contract Detention Facilities owned and operated by private industry, and a behemoth patchwork of approximately 300 facilities contracted through Inter-Governmental Service Agreements (‘‘IGSAs’’).18 A 

handful of these IGSA facilities are dedicated to housing ICE detainees. The remainder contract bedspace to ICE while also holding individuals for the criminal 

justice system. 

Approximately 68 percent of the ICE population, the bulk of current detainees, 

is housed in IGSA facilities (typically, a county jail).19 While ICE evaluates these 

facilities annually to ascertain compliance with the detention standards, many are 

not physically capable of complying. For example, some IGSA facilities do not have 

outdoor recreation areas or lack legal visitation areas with even minimal privacy 

protections.20 Further, in many facilities, ICE detainees are housed alongside individuals in the general criminal population.21

Current detention practices at many of facilities severely limit access to families 

and attorneys. Visits in some detention facilities are restricted to video conferencing.22 The flat prohibition on contact visits among family members at one immigration detention facility in Los Angeles was chastised as ‘‘unnecessary and cruel’’ 

by the Police Assessment Resource Center in October 2009.23 Telephone access in 

immigration detention continues to be plagued by broken equipment, confusing and 

complicated instructions, steep service rates, and limited hours of operation.24 As 

an example of systemic obstacles to legal services for detainees, it takes attorneys 

in Minnesota an average of 6 days to make initial contact with their clients in immigration detention.25 The use of remote facilities and the overuse of transfers also 

hinders detainees’ access to legal services and family and impedes their ability to 

challenge their detention and deportation. The harsh and disruptive consequences 

of frequent and haphazard transfers were documented in reports released just last 
37 

26 Human Rights Watch report; Huge Increase in Transfers of ICE Detainees, Transactional 

Records Access Clearinghouse (TRAC), Dec. 2009, available at http://trac.syr.edu/immigration/ 

reports/220/. 27Department of Homeland Security, Office of Inspector General, Immigration and Customs 

Enforcement’s Tracking and Transfers of Detainees, OIG–09–41, March 2009, available at 

http://www.dhs.gov/xoig/assets/mgmtrpts/OIGl09-41lMar09.pdf. 28OIG Nov. 2009 report at forward. 29 Eric Tucker, Chinese Detainee’s Widow Wants Government Kept in Lawsuit, THE BOSTON 

GLOBE, Nov. 12, 2009, available at http://www.boston.com/news/local/rhodelisland/ 

articles/2009/11/12/chineseldetaineeslwidowlwantslgovernmentlkeptlinllawsuit/; 

Nick Miroff, ICE Facility Detainee’s Death Stirs Questions, THE WASHINGTON POST, Jan. 30, 

2009, available at http://www.washingtonpost.com/wp-dyn/content/story/2009/01/31/ 

ST2009013101877.html; Nina Bernstein, U.S. Agency Issues Scathing Report on Death of Immigrant in its Custody, THE NEW YORK TIMES, Jan. 16, 2009, available at http:// 

www.nytimes.com/2009/01/16/world/americas/16iht-detain.1.19422767.html. 30See ICE Press Releases at http://www.ice.gov/pi/nr/0910/091020boston.htm and http:// 

www.ice.gov/pi/nr/0911/091123philadelphia2.htm. 

week by NGOs and the DHS Inspector General.26 The Inspector General found significant noncompliance with transfer standards in a March 2009 report,27 and more 

recently found that transfer determinations ‘‘are not conducted according to a consistent process’’ and lead to ‘‘errors, delays, and confusion.’’28 Not only are haphazard transfers inefficient, they impede access to legal services and families, which 

further upsets the system. When detainees are transferred far away, continuances 

are required for legal proceedings that have been disrupted and critical documents 

or evidence may be left behind. 

Medical care also remains a critical concern in immigration detention. Recent 

deaths in immigration detention facilities in Virginia and Rhode Island sparked concern, lawsuits, and investigations.29 Following each of these deaths, ICE pulled the 

remaining detainees from the facilities under scrutiny. In just the few weeks since 

the latest detention reforms were announced, two additional detainees have died in 

ICE custody, putting the spotlight rightly on medical care for detainees.30 Detainees 

and their attorneys continue to struggle to request and receive attention for emergent and chronic conditions, ensure continuity of care despite transfers, access medical records, and stabilize mental health conditions. Better access to health care, not 

to mention an end to any preventable detainee deaths, is essential. DHS’ plans to 

create a classification system to place those with health needs in appropriate detention facilities are a welcome step. However, the Government must ensure that any 

medical classification system explicitly contemplates release or enrollment in an 

ATD for those inflicted with medical or mental conditions. Merely building facilities 

better suited to care for the infirm without considering more humane, secure alternatives would be shortsighted. 

Secretary Napolitano recently set a 1-year benchmark for revising immigration 

detention standards at long-term facilities. Existing standards are fundamentally inappropriate for the civil, non-punitive immigration framework envisioned by the 

agency today. The Performance-Based National Detention Standards, revised by 

ICE in 2008 and not yet fully implemented, are based on a correctional model, were 

commented on by NGOs who sought to improve the language, yet remain a set of 

standards derived from and intended for a jail-based detention model. Given the 

Secretary’s goal for revising detention standards, full implementation of the 2008 

standards is uncertain. 

Revising existing detention standards is a significant opportunity for ICE. In the 

meantime, immediate steps towards improving conditions and breaking from the 

mold of punitive detention can and should be taken. Extension of family visitation 

hours and days, permission of contact visits, and expansion of freedom of movement 

inside facilities and within recreation areas should be implemented immediately. 

ICE must follow these initial first steps with the development and implementation 

of standards that comport with the civil nature of immigration detention. 

OVERSIGHT

The non-jail-like detention centers proposed by DHS have the potential to be more 

efficient, humane, and civil than those currently in use. However, any actual improvement in conditions will depend on the enforcement of adequate standards. 

These standards must be mandatory at all facilities with sufficient oversight to 

produce consistent and humane treatment of detainees. Violations must trigger appropriate and enforceable sanctions. Importantly, progress toward improved conditions should not eclipse the underlying need for better assessments and subsequent 

consideration for release, parole, bond, and ATDs. In the meantime, Congress 
38 

should continue to monitor and ensure ICE’s progress towards establishing and implementing consistent, safe, and appropriate immigration detention conditions. 

Government monitoring of compliance with detention standards is critically important as standards are not codified in statute or regulations. Lack of meaningful 

oversight has long been a major weakness of the immigration detention system. Voluminous reports by NGOs, the Government Accountability Office and the DHS Inspector General have documented deficiencies in compliance with detention standards. A shared conclusion of these reports, as well as many other accounts from detainees, is that ICE fails to adequately monitor conditions in detention facilities. Development, implementation, and enforcement of the standards can deliver consistent 

conditions of confinement and essential protections for detainees. 

DHS has publicly committed to improving oversight of detention facilities through 

on-site monitoring and routine and random inspections by the newly created ICE 

Office of Detention Oversight. Another announced improvement to oversight is review of medical request denials by a medical expert. Further, the number of on-site, 

Federal employees contemplated at the largest ICE detention facilities was expanded from 23 as announced in August to 50 as announced in October. These reforms will be a good start towards improving compliance with detention standards. 

However, monitoring must take place at every facility used by ICE to house detainees. The power of in-person monitoring can be substantial. Detainees at one facility 

in Texas were visibly losing weight because of insufficient food. After Dr. Schriro 

visited and heard complaints of hunger from detainees, advocates report that meal 

portions improved. 

Another necessary component of robust oversight is a functioning grievance process. As part of its reforms, ICE has stated that the Office of Detention Oversight 

will investigate grievances and alleged misconduct. The complaint processes within 

the immigration detention system have been historically slow and lacking in their 

ability to remedy individual grievances. Many detainees are not aware of the existing process that directs complaints to the DHS Office for Civil Rights and Civil Liberties and the DHS Office of Inspector General, don’t trust it, or feel that the small 

chance that a complaint will result in an improved system or a personal remedy is 

not worth the risk of retaliation. 

ACCOUNTABILITY

Announcements to ramp up aggressive monitoring and enforcement of terms of 

contracts with detention facilities to improve conditions of confinement are encouraging. The stated intention to terminate contracts where poor performance cannot 

be remedied is especially heartening. It is also notable that this monitoring and enforcement activity, as announced, is to be conducted by ICE and not outsourced to 

private industry, as has been the case with monitoring efforts in the past. ICE must 

cease the practice of renewing contracts with and housing detainees at facilities 

with noted deficiencies. In the past, there have been no apparent consequences for 

failures in facility management and therefore no incentive to improve. Oversight 

without consequences is meaningless. 

CONCLUSION

Over the years, ICE has failed to effectively manage and oversee its massive immigration detention system, even as the number of individuals it detains has grown 

exponentially. The sweeping reforms that were recently announced are promising 

but not fully developed, yet alone implemented. Necessary and fundamental reforms 

must enable ICE to consistently and automatically assess each of the individuals 

it detains and consider release or enrollment in an alternative form of supervision. 

This assessment must inform housing and medical considerations for any detainees 

that are determined to require on-going detention. Next, ICE must overhaul standards of confinement within immigration detention so that conditions become appropriate for the civil nature of immigration detention. These revised standards must 

be vigorously enforced. 

Comprehensive immigration reform that includes a path to legalization would significantly reduce the number of individuals present in the United States in violation 

of the immigration laws, and consequently reduce the need for a system to ensure 

compliance from individuals awaiting adjudication of their immigration claims or 

awaiting deportation. In the mean time, Congress should ensure that DHS transitions to a detention system that is right-sized, safe, humane, and efficient. 

Ms. SANCHEZ. Thank you for your testimony. 

I now recognize Mr. Krikorian for 5 minutes or less to summarize your testimony. 
39 

STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, 

CENTER FOR IMMIGRATION STUDIES 

Mr. KRIKORIAN. Thank you, Madam Chairwoman. 

Barbara Jordan, the chairman of the U.S. Commission on Immigration Reform, told Congress in 1995, ‘‘Credibility in immigration 

policy can be summed up in one sentence: those who should get in 

get in, those who should be kept out are kept out, and those who 

should not be here will be required to leave.’’ 

Our progress in the third of Ms. Jordan’s requirements, removing 

those who should not be here, still leaves much to be desired. 

It is not just that we have 11 million illegal aliens living here, 

even among those aliens who have gone through the whole immigration court process and been issued final orders of removal, more 

than 500,000 of them have shown their contempt for American immigration law by absconding, something they could not have done 

had they been detained. 

DOJ’s inspector general found in 2003 that 87 percent of apprehended aliens who were not detained ran off, including 94 percent 

of those from countries that sponsor terrorism and 97 percent of 

non-detained aliens who were denied asylum. 

A 2006 report by the DHS IG said in its understated way, ‘‘Currently DRO is unable to ensure the departure from the U.S. of all 

removable aliens.’’ 

The disregard for immigration law is so pervasive that the notification that a non-detained alien receives about his final order of removal is colloquially known as a ‘‘run letter,’’ because when he gets 

the letter he runs. He can only do this because he is not being detained. 

In short, a majority of the removable aliens who promise to appear for their court dates are simply lying to immigration authorities. This is the reason immigration detention must not only continue but must be expanded significantly. 

The only way to ensure that illegal aliens actually appear before 

an immigration court is to physically compel them to do so through 

detention. Immigration law is literally meaningless without widespread use of detention to ensure that immigration violators actually leave. 

While it can be worth experimenting with various alternatives to 

detention, in the real world their likelihood of success is limited. 

Pilot programs to assess the viability of such alternatives either 

include people who would not have been detained anyway—creamskimming or cherry-picking, if you will—or fudged the statistics to 

make the results appear more favorable, as the Houston Chronicle 

recently revealed. 

Furthermore, alternatives to detention are not even really plausible subjects for experiment unless the criminal penalties for failing to appear are employed. 

In other words, only when ordinary absconders, no sexual predators or terrorists but just regular illegal aliens who didn’t come up 

for their court dates, are routinely prosecuted and given stiff prison 

sentences can alternatives to detention even be plausibly considered, because then there is a sanction or a stick for not complying. 
40 

The pervasive unwillingness of illegal aliens to comply with immigration law in the absence of detention is not surprising, after 

all. 

Unlike in the criminal justice setting where failing to appear 

often results in additional penalties, a final order of removal is all 

that an illegal alien realistically faces whether he shows up for immigration court or not. 

Furthermore, those failing to appear for immigration proceedings 

are likely to avoid detection for many years, given authorities’ still 

frivolous approach to tracking down immigration absconders. 

In short, alternatives to detention usually is just a synonym for 

catch and release. Rather than focus on a futile search for more alternatives to detention, we would be better advised to increase 

ICE’s bed space. 

As you noted, Madam Chairwoman, detention capacity grew to 

more than 33,000 as of fiscal year 2009, but in the current fiscal 

year there was no request for an increase. It is a flat number. This 

reluctance to increase detention capacity is curious, to say the 

least. 

Secure Communities in 287(g) guarantee that the number of 

aliens ICE is going to have to detain is going to increase significantly. The mismatch that is coming between supply and demand 

for detention beds is going to have two results. 

First, illegal aliens not involved in other crimes are even less 

likely to be detained than now, which means the absconder population is going to resume its rapid growth. 

Second, when all of them are no longer in detention, then criminal aliens who are being handed over to ICE will end up having 

to be released for lack of space. Those people are going to commit 

further crimes. 

The political blowback that both Congress and the administration will face when that happens, when aliens—criminal aliens that 

ICE knew about and then ordered their release—that outrage is 

going to be deserved, I would have to say. 

In conclusion, all Americans support efforts to make detention as 

professional and as humane as reasonably possible. But our focus 

must be on the vital role of detention as a necessary tool to maintain the integrity of our immigration system. Thank you. 

[The statement of Mr. Krikorian follows:] 

PREPARED STATEMENT OF MARK KRIKORIAN

DECEMBER 10, 2009 

Barbara Jordan, chairwoman of the U.S. Commission on Immigration Reform, 

told Congress in 1995: ‘‘Credibility in immigration policy can be summed up in one 

sentence: those who should get in, get in; those who should be kept out, are kept 

out; and those who should not be here will be required to leave.’’ Our immigration 

policy has never lagged in letting people in. And we have gotten a little better at 

keeping out those who should be kept out. But our progress in the third of Ms. Jordan’s requirements—removing those who should not be here—still leaves much to 

be desired. 

It’s not just that we have 11 million illegal aliens living here. Even among those 

whom we have formally designated as ‘‘should not be here’’—aliens who’ve gone 

through the immigration court process and been issued final orders of removal— 

more than half a million have expressed their contempt for American immigration 

law by absconding. 
41 

This is not a new problem. A 2006 report from the DHS Office of Inspector General found that: 

‘‘Currently, DRO is unable to ensure the departure from the U.S. of all removable 

aliens. Of the 774,112 illegal aliens apprehended during the past three years, 

280,987 (36%) were released largely due to a lack of personnel, bed space, and funding needed to detain illegal aliens while their immigration status is being 

adjudicated... Further, historical trends indicate that 62 percent of the aliens released will eventually be issued final orders of removal by the U.S. Department of 

Justice Executive Office of Immigration Review (EOIR) and later fail to surrender 

for removal or abscond.’’ (‘‘Detention and Removal of Illegal Aliens,’’ OIG–06–33 

April 2006) 

A few years earlier, in 2003, the Department of Justice’s Office of Inspector General (before the reorganization of immigration functions in the Department of Homeland Security) found essentially the same thing: 

‘‘Although the INS remains effective at removing detained aliens, it continues to be 

largely unsuccessful at removing nondetained aliens, removing only 13 percent of 

those we sampled. Moreover, the INS was deficient at removing important subgroups, removing only 6 percent of the nondetained aliens from countries that sponsor terrorism, 35 percent of nondetained criminal aliens, and only 3 percent of nondetained aliens denied asylum.’’ (‘‘The Immigration and Naturalization Service’s Removal of Aliens Issued Final Orders,’’ Report Number I–2003–004, February 2003) 

The disregard for immigration law is so pervasive that the notification that a nondetained alien receives about his final order of removal is colloquially known as a 

‘‘run letter’’—because when he gets the letter, he runs. In a similar phenomenon, 

during the surge of non-Mexican illegal immigration on the southern border a few 

years back, a lack of money for detention forced the Border Patrol to release the 

apprehended illegal aliens with a summons requiring them to come back for an immigration hearing in 30 days—and that summons came to be known as the ‘‘diploma,’’ since it permitted the holder to ‘‘graduate’’ into the United States and get 

lost in the large urban immigrant communities. Needless to say, very few of these 

people returned for their hearings. 

And the lack of detention space can have serious consequences. For instance, 

Ghazi Ibrahim Abu Maizar was a Palestinian illegal alien who had been caught 

three times trying to sneak into Washington State from Canada. But on his third 

try, in 1996, Canadian authorities refused to take him back. Instead of detaining 

him, the Border Patrol had no choice but to release him into the United States with 

a summons to appear before an immigration court. Because he was not detained, 

he was able to proceed with a plot to bomb the New York subways, which was averted at the last minute only when a roommate informed police. 

In short, a majority of removable aliens who promise to appear for their court 

dates are simply lying to the immigration authorities. This is the reason immigration detention must not only continue, but must be expanded significantly. The only 

way to ensure that illegal aliens actually appear before an immigration court is to 

physically compel them to do so through detention. While it can be worth experimenting with various alternatives to detention, in the real world their likelihood of 

success is limited. Pilot programs to assess the viability of alternatives to detention 

often either include people who would not have been detained anyway (i.e., creamskimming or cherry-picking those most likely to yield the ‘‘right’’ result) or fudge 

the statistics to make the results appear more favorable, or both. For instance, the 

Houston Chronicle had to make a Freedom of Information Act request to discover 

that: 

‘‘Nearly one in five suspected illegal immigrants who went through an Immigration 

and Customs Enforcement intensive monitoring program absconded while under supervision during the past 5 years, newly disclosed records show...

‘‘On its website, ICE boasts a 99 percent appearance rate in immigration court for 

participants in its restrictive Intensive Supervision Appearance Program (ISAP). Yet 

records maintained by private contractors that administer ISAP show they were ‘unable to locate’ 18 percent of 6,373 illegal immigrants who passed through the program between 2004 and the end of January. Five percent were re-arrested by ICE, 

records show.’’ (‘‘Flaws found in options for immigrant detention,’’ Houston Chronicle, October 20, 2009) 

Furthermore, alternatives to detention are not even plausible subjects for experiment unless the criminal penalties for failing to appear are employed. In other 

words, only when ordinary absconders—who aren’t sexual predators or terrorists but 
42 

just regular illegal aliens who ignored their court dates—are routinely given stiff 

prison sentences can alternatives to detention even be plausibly considered. 

The pervasive unwillingness of illegal aliens to comply with immigration law in 

the absence of detention is not surprising. Unlike in the criminal justice setting, 

where failing to appear often results in additional penalties, a final order of removal 

is all an illegal alien realistically faces, whether he shows up to immigration court 

or not. Though the law provides for imprisonment of up to 10 years for aliens who 

fail to appear at their hearings, the chances that an immigration absconder not involved in additional crimes will be prosecuted are vanishingly small. Furthermore, 

those failing to appear for immigration proceedings are likely to avoid detection for 

many years, perhaps for the rest of their lives, given authorities’ still-frivolous approach to tracking down immigration absconders. For example, under pressure from 

local advocacy groups, many police departments refuse to serve ICE administrative 

warrants issued to absconders, thus shielding the scofflaws from facing the consequences of failing to depart. Thus, alternatives to detention are simply irrelevant 

for those likely to be rejected for asylum or cancellation of removal—i.e. the majority 

of those in removal proceedings. 

In other words, ‘‘alternatives to detention’’ is simply a synonym for ‘‘catch and release.’’ 

Rather than focus on a futile search for alternatives to detention, we would be 

better advised to increase ICE’s bed space. There was, in fact, an increase through 

fiscal year 2009, albeit from a low starting point. ICE had funding for 18,500 detention beds in fiscal year 2003, 32,000 beds by 2008, and 33,400 beds in fiscal year 

2009. But the growth has stopped, with the fiscal year 2010 DHS budget allowing 

for no increase in detention beds. This despite the fact that the actual physical capacity to detain more illegal aliens exists in most parts of the country, much of it 

in unused county jail space. What’s more, a number of States have offered to help 

ICE by covering the up-front cost of new jail construction in exchange for an understanding that ICE will use it. 

The reluctance to increase detention capacity is curious, to say the least, in light 

of the Secure Communities initiative and the spread of jail-based 287(g) programs. 

These efforts ensure that the number of aliens ICE will have to detain is going to 

increase significantly. The mismatch between supply and demand for detention beds 

will likely have two results: First, illegal aliens not involved in other crimes will 

be even less likely to be detained than now, meaning the number of absconders will 

resume its growth. Second, there will be an increase in the number of criminal 

aliens whom local jurisdictions have alerted ICE to, but who have to be released 

because of a lack of funding for detention space. The result of both of these developments will not only be bad policy, but also bad politics—the public’s confidence in 

the Government’s promises to enforce the law will be further eroded and, when a 

number of the released criminals inevitably commit new crimes after having been 

ordered released by ICE, the administration and Congress will rightly be subjected 

to public outrage. An example of how detention of certain illegal aliens can literally 

save lives: Davidson County, TN, has reported that 75 percent of the vehicular 

homicides committed by illegal aliens would have been prevented if the illegal alien 

had been deported, presumably after detention, on the basis of prior offenses. 

A final point on the supposedly inhumane nature of detention. Most aliens are 

detained for a short time, an average of 1 month. With a few exceptions, the small 

number who remain in detention for long periods are there because they continue 

to challenge their deportation. And they often do so because they are given false 

hope by open-borders advocacy groups intent on using such people as pawns in a 

political effort to hamper enforcement of American immigration laws. The humane 

thing to do would be to make clear to these illegal aliens that immigration to the 

United States is a false dream for them and help them return home and get on with 

their lives. Instead, they languish in detention—a needed detention, given the virtual certainty that they would ignore a negative decision on their cases—but languish nonetheless. 

All Americans support efforts to make detention as humane as possible. But it 

is essential to emphasize that detention is a necessary tool and consequence for 

those who have violated our immigration laws. 

Ms. SANCHEZ. Thank you, Mr. Krikorian, for your testimony. 

I thank all of the witnesses for their testimony. I will remind 

each Member that each of us will get 5 minutes to question the 

witnesses, and I will now recognize myself for some questions. 

I am trying to wrap my arms around this whole issue of detention. There are a lot of differences, obviously, on this panel, which 
43 

is a good thing. I think most of you are working in a particular 

area of this whole detention issue, and so I have a couple of questions. 

First of all, what is the average length of stay for somebody in 

a detention facility, whether they are moved or not? What is the 

average length before we decide yes, you have a real case, and you 

have gone before a judge, and you are moving in a different direction to stay here, or no, you have nothing, we have got to get you 

out of the country now? 

Does anybody have some idea of what that would be? 

Doctor. 

Ms. SCHRIRO. Thank you. The average length of stay was 30 days 

at the time of the preparation of the report. But like all averages, 

it is something of a misleading statistic. There are a large number 

that are gone within 1 day, a large number gone within a week, 

a larger number gone within a month. 

There are relatively few that are there longer than 6 months 

and, for fiscal 2008, fewer than 2,100 who stayed a year or more. 

But of course, within that time, then there is, as you suggest, 

movement to more than one facility. 

Ms. SANCHEZ. So are you saying to me that it is sort of like the 

80/20 rule, 80 percent are easy to decide within a day or a week 

or what have you, but it is that other 20 percent that take up a 

lot of the resources and time to deal with? 

Ms. SCHRIRO. Well, you could have people there for a short period of time but by virtue of high need or their high risk that they 

present, you know, will incur more costs as well. 

But those who agree to removal are typically gone fairly quickly, 

and those who are seeking some form of relief will tend to stay 

longer. 

Ms. SANCHEZ. Anybody have a different answer than what we 

just heard from the doctor? 

Mr. KERWIN. I don’t have a different answer, but I did want to 

say that, you know, the average is 30 days, but there is—25 percent are out within a day or two. But there are a significant number of long-term detainees. 

When we looked at a database of everybody in detention on a 

particular night in January 2009, we found that more than 4,000 

of the people in detention on that night had been in custody for 

more than 6 months as of that date. 

Of those, almost 1,000 had been detained for more than 6 

months after having received an order of removal. That is a significant date, because the Supreme Court has held that detainees 

must be released within 6 months of a removal order, unless the 

Government can show that there is a significant likelihood of removal in the future. 

So there are a high number of people in ICE custody—a low percentage but a high number—on any given night who are presumptively eligible for release. That doesn’t mean they have to be released, but under the Supreme Court decision the burden is on the 

Government to show that they can be released soon. 

Ms. SANCHEZ. Yes. 
44 

Ms. NYSTROM. In my experience, the average length of stay varies tremendously across facilities. As you have noted, there is a 

patchwork of facilities that vary in condition standards. 

I would submit that the length of stay also varies widely across 

facilities. This is one area that is a tremendous inefficient use of 

Government resources. 

For facilities that are located near the border, the repatriation 

rate is much quicker than facilities that are located, for example, 

here in Virginia. In my experience, detainees with a final order of 

removal in detention often wait 2, sometimes 3, months simply to 

be returned to their country of origin. 

Ms. SANCHEZ. Okay. 

Mr. CRANE. May I add to that, ma’am? 

Ms. SANCHEZ. Yes. 

Mr. CRANE. On the length of stay, the agency actually announced 

last week that the average length of stay for an ICE detainee is 

6 weeks. 

I would add to that, as far as our officers in the field, we try to 

have an individual removed if we can within 1 to 2 weeks. Usually 

every week we are shooting for 1 week, as fast as we can, to move 

this individual, because we, frankly, don’t have the bed space to 

keep them. 

Now, as far as the length of stay, I think it is important to say 

that there is a lot of things making that happen, but the key thing 

being—is that that individual, generally speaking, is trying to pursue their case. They are trying to stay here. 

One of the big frustrations that we have on the DRO side of the 

house is that when they show up for court, a lot of times they are 

not prepared for court or their attorney, more specifically, is not 

prepared for court. 

They are asking for continuances, which depending on our court 

calendars may be 6 months at a—or, I am sorry, 6 weeks at a time. 

So these detention stays really are dependent on the individual. 

The individual is creating—they are trying to fight their case, so 

it is not—most of the time it is not something that we are trying 

to do. We are trying very hard to get them out of custody. 

Ms. SANCHEZ. So, Mr. Crane, would you say that this person who 

is trying to fight their case—you think they are just dragging their 

feet so they can just stay, stay, stay? 

Or do you think it is because we are not doing a good job about 

making sure they can see their lawyer, we have transferred them 

so now they have got to start with a new lawyer, or maybe phone 

calls aren’t allowed out? 

Or do you think it is because the detention facility doesn’t really 

allow them the opportunity to put together a good case in a short 

amount of time, or because they simply are going to push the judge 

or the system as long as they can? 

Mr. CRANE. I don’t think anyone wants to stay in jail. I think 

every one of these individuals wants to see their case come to a 

close as quickly as possible. That is my personal opinion. 

But there are a lot of things going on that—you know, for example, like I said, the attorneys constantly showing up to court and 

the attorney is not prepared. It has nothing to do with the de-
45 

tainee. They are asking for these continuances. This is happening 

all over the country, so—— 

Ms. SANCHEZ. Would anybody opine as to why these attorneys 

aren’t prepared? 

Mr. CRANE. Because the system allows them not to be prepared. 

When they can show up to court and they can ask for a continuance, and they know they are going to get it, then they are going 

to continue to do it, until the judges start, you know, holding these 

attorneys accountable. 

Ms. SANCHEZ. Anybody else have a different opinion on that? 

Mr. KERWIN. Yes. I mean, I have a strongly different opinion. 

The fact is that most people in removal proceedings don’t have 

counsel, so most of the continuances are to seek counsel, to try to 

get some kind of representation. 

You know, they are not fighting their removal. They are pursuing relief from removal. That is what they are doing. They are 

pursuing relief for things that they may be entitled to under U.S. 

laws. 

Ms. NYSTROM. I would also like to add that some of the attorneys 

seeking continuances are, in fact, ICE’s trial attorneys, and that 

happens on occasion when, for example, criminal conviction records 

are not in the file, or, as you alluded to, when someone has been 

transferred to a new facility and the alien file does no go with the 

detainee to the new location. 

That results in a significant delay, and that was pointed out in 

the inspector general’s recently released report. 

Ms. SANCHEZ. So would it be better for us to try to figure out 

that particular process? We don’t really do it in this subcommittee. 

I think we are very gifted to have Zoe Lofgren on our subcommittee because she is over on the Judiciary Committee and she 

deals a lot with some of these issues. But do you think it is maybe 

that the resources aren’t in place for someone to be able to get their 

day in court faster with a strong lawyer to make sure that they 

have some redress in the system? 

Anybody want to—— 

Mr. CRANE. What I can tell you specifically is that we have 48 

hours to serve this individual with documents, charging documents, 

and everything seems to come to a screeching halt after that. So 

yes, the problems really lie after that point. 

We bring them into custody. We serve them with their paperwork. And then everything just kind of stops at that point. 

Ms. SANCHEZ. But if things could go faster in the court system, 

then from a standpoint of the detention and the work that you do, 

you are saying that the person who is being held wants it to go 

faster, you all want it to go faster. 

If we can get that process done in a fair resourced way, we might 

not need to look for more beds if we can remove those individuals 

or say maybe you have a real right to be in this country, rather 

than continuing, continuing, continuing because there are no lawyers available, or there is not a courtroom available, or a person 

got transferred so records aren’t following up with these people. 

Mr. CRANE. I think that we will always be searching for beds, because we are always going to be out there making more arrests. 
46 

But I think that we would serve these individuals much better if 

we could clean up some of those issues, yes, ma’am. 

Ms. SANCHEZ. Okay. 

I have gone over my time, but I am hoping we might have some 

time for some more questions, because I have a lot more of them. 

I will recognize my Ranking Member now, Mr. Souder, for 5 minutes. 

Mr. SOUDER. I would request that we seek from ICE, DHS, on 

behalf of the subcommittee, a detailing of how many of the appeals 

actually win—in other words, how many are found that they were, 

indeed, entitled to enter the United States. 

I would guess that it is a small percentage. Do you any of you 

know? Then why were you making assertions if you didn’t know? 

I mean, the fundamental question here is that—the question is 

why are these people—and the implication was—is that somehow 

ICE was awful for holding these people here. 

Then we—which I agree with, the reason most of them are there 

are one of two things, they are the only person from, say, Brazil, 

and we have to get a special plane to fly them back or buy a ticket, 

divert agents to do that, some get held longer because we can’t 

send them back to the country that they came in, we have to— 

American taxpayers pay to detain them, pay for their lawyers, pay 

for all the information, pay to ship them back to Brazil, or wherever—I use Brazil because I have seen a number of cases relating 

to Brazil. 

In fact, then the assertion was made that the reason that maybe 

these trials are taking longer is because of attorneys weren’t there, 

they didn’t have access and so on. 

The question is that how many of them win, and that would 

seem to me to be the first thing you would want to know, because 

if you could show that most of these people who were held and 

didn’t get proper information, or it took a long time, in fact were 

legitimately mistreated, that would be very compelling. 

Mr. KERWIN. May I respond? 

Mr. SOUDER. Yes. 

Mr. KERWIN. Yes. 

Mr. SOUDER. That is why I asked earlier. 

Mr. KERWIN. Well, we do know. I mean, we don’t know—I mean, 

I don’t know exactly right here, but, you know, tens of thousands 

of people get relief from removal every year—asylum, they are 

found to be eligible for adjustment of status based—— 

Mr. SOUDER. That is what I was—— 

Mr. KERWIN [continuing]. On a family tie. You know, some of 

them get, you know, other relief from removal—cancellation of—— 

Mr. SOUDER. Thousands—— 

Mr. KERWIN. So it is a significant number. We also know that the 

people with legal representation get relief at rates that are, you 

know, sometimes three or up to six times higher than those without representation. 

Mr. SOUDER. Well, I would like to see the formal statistic. I believe that you should be able to access reasonable, you know, representation. Thousands in the course of millions is not particularly 

an impressive number. 
47 

Then, if that is the case, we should make sure that they are 

there but not try to imply that there is some kind of a policy to 

keep people in prison for a long time. We are dealing with a small 

group that we ought to analyze. 

To the degree they are mistreated, we ought to look and test 

that. Now—— 

Mr. KERWIN. If I might, it is not thousands related to millions. 

It is about 330,000 come into removal proceedings each year. I am 

not sure exactly how many of those are detained. That is total removal cases. There is many thousands of those that do get relief 

from removal. 

It is not correct to say that there is Government-paid attorneys. 

There is not. So, you know, what you have is you have a system 

where in some facilities there is some legal orientation presentations provided to people, but that doesn’t necessarily lead to legal 

representation. 

Mr. SOUDER. The legal organizations that provide the—do not receive any Federal money. 

Mr. KERWIN. They do. They do, but there is no Federal money 

for legal representation. 

Mr. SOUDER. There is no Federal—the organizations that are 

providing—well, I don’t want to get bogged down in this. I don’t believe you are—correctly representing that. 

Mr. KERWIN. No, I am. I am absolutely correct on that. 

Mr. SOUDER. Many of these organizations receive Federal funds 

and then provide the funding. We provide the law libraries. Depending on how a person represents themselves—it is not correct 

to say that there is no Federal funding involved in the defenses. 

It is just not correct. Now—— 

Mr. KERWIN. There is no Federal funding for legal representation. That is absolutely 100 percent correct. 

Mr. SOUDER. Indirect. You are saying there is no indirect Federal 

funding—— 

Mr. KERWIN. No legal representation. There is funding for legal 

orientation presentations which are, you know, to—— 

Mr. SOUDER. Doctor—— 

Mr. KERWIN [continuing]. Hundreds of people in detention centers. 

Mr. SOUDER. Dr. Schriro, could you—I just have a technical question. Why are the ICE personnel being required to wear uniforms 

before entering a New York jail? That was a policy decision that 

doesn’t apply to any other Federal agencies. 

Ms. SCHRIRO. That is a policy that I instituted upon becoming 

commissioner of New York City, and it was to ensure that the population knew the parties with whom they were speaking. 

Mr. SOUDER. You know that ICE agents—I mean, you are familiar with this—do not have a standard uniform that they wear all 

the time. Why wouldn’t you have the same of FBI, DEA, any other 

Federal agency? What is the point of singling out ICE? 

Ms. SCHRIRO. The point is that in the civil system there is no 

equivalent to Miranda, and so when you are spoken to and you answer a question, it is without warning or an awareness of what the 

ramifications are. 
48 

So we adopted a practice in New York City, first requiring ICE 

to ask of us to speak with the pretrial individual prior to addressing them, and we in turn, when the individual says, ‘‘Yes, I will 

speak with ICE, with or without representation’’—that the people 

that they meet are properly identified. 

Mr. SOUDER. In civil trials for citizens, are law enforcement people required to wear uniforms? 

Ms. SCHRIRO. They are required to—I am sorry? Ask that again, 

please. 

Mr. SOUDER. In other words, one of my problems here is that we 

are continuing to have this separation in—as if people who have 

entered the United States, A, get exactly the same rights as citizens and, in fact, they seem to be getting more rights than citizens. 

That while I understand your—and it is not really a citizen has 

a different right, and therefore that may be the answer to my question. 

But that one of the whole fundamental problems I have with this 

is that there is this implication that somehow people who have entered the country illegally and even if they were—had other rights, 

they still wouldn’t have been picked up if they hadn’t been trying 

to enter without proper documentation between ports of entry— 

variations like that. 

My frustration is that they are acting like they are not criminals. 

They are arrested just like American citizens are arrested for 

criminal behavior. It is criminal to break the law. That is what a 

crime is. 

Now, there are different types of crimes in severity, and most of 

these people, I agree, are more mild-mannered. They are, generally 

speaking, not resistant. They are very kind. Individuals—you 

know, most are. 

But how you separate out which one is going to necessarily be 

which, what—are we going to have a different standard for countries of interest, so to speak, people of interest? 

They haven’t committed a crime. They are, say, from a high-risk 

country that their—they may be an individual who we have on a 

list. But on what grounds would we hold them as opposed to somebody from another country if they haven’t committed a crime? 

That we are going to set all kinds of double standards here. That 

if somebody is in Virginia and captured, quite frankly, it means 

they have been in the United States for a greater period than if 

they are captured right at the border. 

That they have probably utilized services that they haven’t paid 

for, which is a huge debate. That this whole discussion is though 

these people haven’t committed criminal acts. 

The No. 1 complaint from law enforcement in my district, which 

ICE has been trying to address, is why local taxpayers are having 

to pay for detention of people for violating Federal crimes but who 

have other problems in our local communities. We can’t even get 

them deported. 

That it is a frustration in the United States. If you ask the majority of the American people, they think the problem is we aren’t 

deporting fast enough. We need more courts as well as more detention facilities. 
49 

Most people would agree we should accelerate the deportation 

process. I don’t think most people disagree with that. If that is 

where we need more money, let’s get them out. If they have to have 

fair—you know, some kind of legal representation they aren’t getting, then let’s see that that gets done and get them deported. 

But the whole point of this—I believe it is somehow turned on 

its head, and I just can’t get my handle around what we are doing. 

Ms. SANCHEZ. Thank you, Mr. Souder. 

Maybe at some point Zoe Lofgren, who is much more versed in 

this stuff, might give us a implication of what it means when you 

enter the United States, and what types of rights you might have 

versus citizens. I am certainly not as well versed as she on that. 

But at this moment, I would like to recognize the gentlewoman 

from California, Ms. Harman, for her 5 minutes. 

Ms. HARMAN. Thank you, Madam Chairwoman. Thank you for 

holding this hearing on a subject that is of enormous concern to 

residents of Los Angeles, which holds about 6 percent of the detainee population Nation-wide, according to the Department of 

Homeland Security review of detention policy. 

So I appreciate the opportunity to learn more and also to think 

about immigration and illegal immigration again as we struggle 

with this issue. 

I am the daughter of immigrants. My father was an immigrant. 

My mother was the daughter of immigrants. I would assume many 

of our committee Members are, too. 

Immigration makes America strong, as everyone has pointed out. 

Immigration done legally makes America strong. Immigration that 

is illegal is a challenge for America. 

I strongly believe—agree with Mr. Souder and Ms. Sanchez that 

we should enforce our immigration laws. But we should do that enforcement in a way that reflects our values. 

As we consider this problem, detention of immigrants who do not 

pose a threat in terms of violent behavior has to respect basic 

human rights and civil liberties. It is a necessity of our—of living 

our values. 

I want to ask you about context. Our committee doesn’t have jurisdiction over this, but I was and still am a huge proponent of 

comprehensive immigration reform. Several of you mentioned that 

as you testified. 

I want to know whether you think this problem would be greatly 

helped if we could enact a proposal for comprehensive immigration 

reform. I am thinking essentially of the proposal that former President George Bush, supported by a large number of Members on a 

bipartisan basis here, was proposing in the last term of Congress. 

How much difference would immigration—comprehensive immigration reform make to this problem? 

Ms. NYSTROM. You are absolutely right. It would make a tremendous difference. The most obvious reason for that would be if comprehensive immigration reform contains a path to citizenship for 

many of the millions of people who are currently here with no valid 

immigration status, the numbers that would need to be in removal 

proceedings, and therefore arguably considered for detention, would 

be dramatically reduced. 

Ms. HARMAN. Thank you. 
50 

Other comments. 

Mr. KRIKORIAN. Yes. If I could disagree, Congresswoman, Michael Chertoff, who was the previous DHS Secretary, estimated 

that 15 to 20 percent of the total illegal population would be barred 

from legalization under the proposals then being considered because of various criminal background or other matters. 

The fact is that virtually all illegal aliens have committed multiple Federal crimes, not just civil violations but criminal violations. Crossing the border, obviously, is a Federal crime. Signing an 

I–9 form is perjury. It is a felony if it is false information. 

Buying false documents is a Federal crime. Using false documents is a Federal crime. Absconding from a court date is a Federal crime punishable by up to 10 years in prison. 

So the assertion seems to be that if we redefine the illegal immigrants here as legal, then the detention issue, the detention problem, will disappear or at least be dramatically reduced. 

The fact is a very large portion of the illegal population, even 

under the proposals that President Bush suggested, which are essentially the same as whatever it is that Congressman Gutierrez 

or Senator Schumer will come up with—a very large portion will 

not be redefined as legal. 

There is always going to be the further issue of on-going, continuing illegal immigration, not just from border crossers but from 

the very large share of the illegal population that is people who 

enter legally on visas and then never leave. 

So the answer, I think, is that to look at a broad legalization program as a solution to detention is—I think is a mistake. It is actually the other way around. 

Only a very robust detention—and credible detention system 

would be one of the ways to contribute to public—you know, to create the credibility that the Government will enforce the law. 

Now, honestly, I am against comprehensive immigration reform. 

But the way to do it is through more robust detention, among other 

things. 

Ms. HARMAN. Well, let me just say that I—as I said earlier, I am 

for enforcement of our immigration laws. I do agree with you that 

there are crimes connected with forging documents in—related to 

one’s illegal status. 

However, I think most of these folks are coming here seeking a 

better quality of life for themselves or their families. With the economic collapse that we are experiencing, there has been a huge decrease in illegal immigration. I don’t think that is due to detention. 

I think that is due to different economic circumstances. 

I continue to hope that we come up with humane comprehensive 

immigration reform, and I do think it will make a difference in 

terms of the population that we have to detain in connection with 

illegal immigration. 

I would just ask—my time has expired, Madam Chairwoman. 

But if anyone else wanted to comment, I hope you will permit that. 

Yes, Mr. Crane. 

Mr. CRANE. Yes, ma’am. I would just like to say there is a lot 

of numbers floating around out there about who we actually have 

in custody at ICE, and the—in November the agency released the 

number of 53 percent convicted criminals. 
51 

Now, I can tell you, having worked the CAP program for 5 years, 

the majority of individuals that we are incarcerating are coming 

out of county and State jails. They have been arrested for extremely serious crimes. 

You know, the booking sheets are coming into us every morning. 

We are picking out the worst ones we can find and we are going 

to the jails and we are looking for the worst of the worst. That is 

our priority. 

We would estimate that potentially 30 to 40 percent of the individuals that we are saying are non-criminal actually were arrested 

in criminal charges. The reason most of the time—and this is an 

epidemic problem in the United States right now—that they are 

being released to us without convictions is because the counties 

don’t have the money to prosecute them and hold them. 

So ICE has become a dumping ground for people—their problems 

that they have arrested. So I don’t really know if reform is really 

going to be the answer to that problem. 

Secondly, I would say that any time you give someone a legal 

right to be here, along with that comes rights—a lawful permanent 

resident, you know—they can possess marijuana. They can get 

DUIs that—you know, they can do all of these different things. It 

takes away from our ability to enforce the law. 

I am not saying that that is not a solution, that reform isn’t 

there, but I just think that we need to consider—I am sorry. 

Ms. HARMAN. Yes. Thank you. My time has just expired, and I 

don’t want to abuse my privilege in the committee. I would just observe that I am not for anyone breaking laws, but I don’t think 

that one of the deterrents to becoming lawful should be the fact 

that if you are lawful you then have some added rights to commit 

crimes in this country. I don’t think you do. 

I yield back the balance of my time. Sorry—— 

Ms. SANCHEZ. Thank you, Ms. Harman. 

I am really concerned about something that you said, Mr. Crane, 

that people aren’t being prosecuted for alleged crimes. But the fact 

they are not being prosecuted could mean, at least under our system, that they actually don’t have that crime on their record. 

Therefore, you know, it shouldn’t—at least the last time I 

checked, it shouldn’t count against people. So you know, this might 

be something that we have to look at from a much more local level 

about, you know, how people—how our cities are—and our counties 

are actually doing in going after some of this. 

Mr. Souder. 

Mr. SOUDER. If I can, as a supplement, ICE came into my district 

after much pressure and held a meeting with prosecutors, judges, 

and sheriffs to talk about the frustrations about how they make decisions on whether they are going to come and pick up people in 

our local jails, of which over half were not legal. 

One of the prosecutors made this point, that almost all cases 

anymore are plea bargained, and that she was trying to focus her 

legal cases on domestic violence, and she will—she was plea bargaining the other. Plea bargains aren’t treated the same as convictions. ICE was only going to pick up the people with convictions. 

They asked, ‘‘If we get a conviction will you—and spend our limited amount of court time on the convictions, will you guarantee 
52 

you will get them, because that means we are going to have to plea 

bargain with the other people in our court cases,’’ and they said no, 

they don’t have enough resources. 

So even if they had a conviction, they couldn’t, and that—so we 

have got to get into the—behind the challenge here. 

Ms. SANCHEZ. I think that is what I was trying to say. We have 

to really take a look at what is going on at the local level also. 

I will now recognize, very patiently here, Mr. Cuellar for his 5 

minutes. 

Mr. CUELLAR. Thank you, Madam Chairwoman. 

Thank you for the witnesses for being here. Let me ask you 

about another facet. What about the country of origin that have to 

issue the travel documents to send those individuals? 

There are delays, and I assume some of the—certain particular 

countries are—you know, do a better job of delaying having to return those individuals. 

Can any of you all want to talk about those country of origins 

and the delays? Anybody in particular—any particular country that 

stands out? 

Mr. KERWIN. I would be happy to, because we looked at that recently. It used to be that, you know, two or three countries were 

responsible for all—you know, the great majority of people that 

didn’t get travel documents. It would be Cuba, Vietnam, Cambodia 

and the like, places that we didn’t have repatriation agreements 

with. 

Actually, those numbers are way down, and there is not a—there 

is not one country that is—you know, has significantly more cases 

than any other. It seems to be more of a dispersed issue at this 

point. 

I mean, that is a big, big issue, and explains, I think, to a certain 

extent, you know, the number of long-term detainees after being ordered removed, because they just can’t get travel documents for 

them. 

Mr. CUELLAR. After a particular time, what happens if a country 

doesn’t want to take an individual back? Is that person released in 

the United States? 

Mr. KERWIN. That is what the Supreme Court case is about, that 

after 6 months they have become presumptively eligible for release. 

But if the Government is still pursuing and it looks, you know, 

foreseeable that the person can be removed, then they would—then 

they would stay detained under that Supreme Court case. 

Mr. CUELLAR. Have we had anybody with a criminal record be 

released after those 6 months if a country doesn’t take them? 

Mr. KERWIN. I am sure, but I am—I don’t know, like, specific 

cases. 

Mr. CUELLAR. Mr. Crane, you nodded your head. 

Mr. CRANE. Yes, sir. I would say that is happening every day, actually, and I can give you a specific case of an individual that was 

convicted of assaulting a police officer in our area. He came into 

custody. He assaulted me, received 13 months for assaulting a Federal officer. 

He was from Sudan. We were unable to remove him. We had 

to—we were forced to release him, at which time he was arrested 
53 

for rape after that, at which time our supervisors told us not to 

take him into custody again. 

Mr. CUELLAR. All right. 

Mr. CRANE. So yes, it happens very frequently. 

Mr. CUELLAR. Yes, and that is what I understand also, so I think 

that is an issue that we probably have to look at. 

Let me direct my question to the costs and the efficiencies. 

Where are the—most of the detention centers held? I mean, I 

would assume that if they are closer to a border, I assume most 

of them will be going to Mexico, South America, Central America. 

Wouldn’t you assume that most of those locations should be on 

the border? 

Anybody. Mr. Crane. 

Mr. CRANE. I am sorry, sir, are you talking about where they are 

actually going to be held—— 

Mr. CUELLAR. Yes. 

Mr. CRANE [continuing]. Or see an immigration judge? 

Mr. CUELLAR. Right, exactly, or the—detained. 

Mr. CRANE. You know, sir, that is hard to say, because especially 

when you start mixing the fugitive operations teams in, and we are 

dealing with individuals that we are going to release, we have got 

to have judges in those areas, and we really need to have—if we 

have got some kind of facility there locally, that makes it—it facilitates it for those individuals. 

Mr. CUELLAR. Okay. 

Mr. KERWIN. Dr. Schriro’s report actually speaks to that. I mean, 

there is a little bit of a disconnect. Most of them are in kind of the 

southern States, in the border States in particular, and there is a 

little bit of a mismatch between detention capacity and demand, 

but—— 

Mr. CUELLAR. Dr. Schriro. 

Ms. SCHRIRO. Just more specifically, we overlaid where arrests 

occurred and where capacity was available, and there were disparities in some parts of the country, and that largely contributes to 

the transfers. 

So for example, in the northeast, in the mid-Atlantic States in 

particular, there is an acute shortage of bed space proportionate to 

the level of arrests. 

So it is far more likely that if you are apprehended in those 

areas that you are going to—the course had been for some period 

of time that you would go to kind of Pennsylvania Dutch Pennsylvania, then down through Mexico, Texas, Louisiana, sometimes 

Florida. 

Speaking to some of the other testimony given previously, if you 

were fortunate to have counsel then, you lose that relationship. 

Where you had community ties or other resources, they are not as 

likely to be available. 

Mr. CUELLAR. Okay. 

Last question. Secure Communities initiative—is that something 

that works? 

Mr. Crane. 

Mr. CRANE. Sir, I will tell you, we weren’t real impressed with 

it. In my area—I was out of the State of Utah—they were pulling 
54 

officers out of our offices to send them down to the southern border. 

We were short-staffed already. 

We had criminals walking out of jails because we couldn’t work 

our CAP program. They got down to the southwest border and 

managers said, ‘‘We don’t have anything for you to do, just—we 

weren’t prepared for this. We didn’t know what to do with you. 

Just kind of hang out.’’ 

Quite honestly, when they went down there, I think they were 

arresting primarily CIS referrals, and they used all of those up in 

about 30 days. After that, we are really not quite sure what they 

were doing. They weren’t really making arrests. 

But they certainly could have been making arrests if they were 

back in their respective areas. 

Mr. CUELLAR. All right. Thank you. 

Thank you, Madam Chairwoman. 

Ms. SANCHEZ. Thank you. I thank the gentleman from Texas. 

Now we will hear from the gentleman from—Mr. Pascrell, I believe, is next, from New Jersey—— 

Mr. PASCRELL. Thank you. 

Ms. SANCHEZ [continuing]. For 5 minutes, recognized. 

Mr. PASCRELL. Thank you, Madam Chairwoman. 

First of all, I think that the—as I have said many times, the 

Government has the right to know who is in this country at any 

given time in order to protect the country. 

We have heard from everybody how we need to protect our borders. But I think we are spinning our wheels, no question in my 

mind about that. 

When I look at the—if you turn to page 4 in the materials that— 

received, the number of ICE detainees per day, you notice there 

was a 33 percent increase between 2006 and 2007, and then a little 

bit more the next year. 

One must conclude from that that our great, courageous Congress and our great, courageous administrations—that is when 

there was discussion about comprehensive health—comprehensive 

immigration reform, so this was our response. We will show everybody that we are tough. 

Now, we are talking about 33,000 on any given date. Do you 

know what the percentage is of the undocumented folks that are 

in this country? What percentage would that be? A very, very, very 

small percentage. 

I mean, we know the percentages of how many criminals. The 

percentage of criminals that we detain of these 33,000—we are 

hearing that maybe up to 50 percent of them have committed multiple criminal acts. Is that what I am hearing from the panel? 

Well, what percentage of criminal acts are perpetrated, committed, by the 11,960,000 other illegal immigrants that are in this 

country? Are they high-risk as far as crime is concerned? This is 

not the solution to the problem, the direction that we are going in, 

by any stretch of the imagination. 

Removing those who don’t belong here—do you know how long 

that would take, Mr. Krikorian? How long would that take? 

Mr. KRIKORIAN. Well, we have actually modeled that, and it is 

not just a question of—because the—— 

Mr. PASCRELL. How long would that take? 
55 

Mr. KRIKORIAN. Our estimate is that in 5 years you could cut the 

illegal population in half. 

Mr. PASCRELL. So you—— 

Mr. KRIKORIAN. Not by arresting everybody individually, but by 

a combination—— 

Mr. PASCRELL. But you talked about removing them. You didn’t 

just talk about arresting them. You talked about removing them. 

Mr. KRIKORIAN. That is a combination—— 

Mr. PASCRELL. Mr. Krikorian, let me ask you the question again. 

Maybe I didn’t make myself clear. How long would it take to remove them? 

Mr. KRIKORIAN. We wouldn’t have to remove them. The question 

itself is based on a—— 

Mr. PASCRELL. We wouldn’t have to remove them. 

Mr. KRIKORIAN. Because the way immigration enforcement works 

is a combination of forced removal and voluntary—essentially voluntary self-deportation, because you squeeze people out of the 

country. 

Mr. PASCRELL. Well, what you are—— 

Mr. KRIKORIAN. It is a combination of both. 

Mr. PASCRELL. Excuse me. What you are implying here, Mr. 

Krikorian, is that either we are approaching this in a cavalier 

sense, or we are simply inept. 

Mr. KRIKORIAN. Well, there is probably a lot of that, but what 

specific—— 

Mr. PASCRELL. Okay. Or is the Government unwilling to confront 

the issue? Is this politically incorrect? What do you think? 

Mr. KRIKORIAN. Is what politically incorrect specifically? 

Mr. PASCRELL. Part of your documentation you gave a—made a 

presentation here. Removing undocumented aliens. 

Mr. KRIKORIAN. Well, it is something the public wants, and it is 

clearly contentious among both business groups and other advocacy 

groups. So yes, it is politically—— 

Mr. PASCRELL. Well, maybe the public—— 

Mr. KRIKORIAN [continuing]. It is politically incorrect. 

Mr. PASCRELL. Maybe the public wants us to deal with the subject so that we get beyond the symptoms and find out what the 

problem is so that we can, in some manner, shape, or form, not 

only humanely respond to those that are in the caboose but respond to those that are not committing those crimes and not being 

detained. 

Do you think that employers who hire undocumented aliens, 

those who have broken the law multiple times, Mr. Krikorian—do 

you think that employers should be incarcerated and detained as 

well? 

Mr. KRIKORIAN. Absolutely. They should—— 

Mr. PASCRELL. How would you do that? 

Mr. KRIKORIAN. First, by requiring all new hires to be cleared 

through the E-Verify system, so that then prosecutors actually will 

have a paper trail, which is very difficult now, to make a case 

against them. 

Mr. PASCRELL. Do you know how many employers are in jail that 

have hired undocumented aliens? 

Mr. KRIKORIAN. I don’t know, but it is very small. 
56 

Mr. PASCRELL. How come you don’t know that but you know how 

many undocumented aliens are in jail and how many times they 

have committed multiple criminal acts? 

Mr. KRIKORIAN. Because the hearing is about detention of illegal—— 

Mr. PASCRELL. Well, look, you are an expert on it. I am not. You 

know that you—you know the numbers. You were clicking off numbers before of how many criminals are out there on the loose, inside the caboose, inside the—look. I know the game. I know what 

you are up to. 

Now, most undocumented aliens are not detained. You would 

agree with me? 

Mr. KRIKORIAN. Of course, yes. Absolutely. 

Mr. PASCRELL. And most undocumented aliens shouldn’t be detained. 

Mr. KRIKORIAN. Probably. Well, it depends. I mean, if they are 

in immigration proceedings, yes, they should be, generally speaking. 

Mr. PASCRELL. Well, according to you, they all broke the law 

since they shouldn’t be here in the first place. 

Mr. KRIKORIAN. Well, yes, okay. 

Mr. PASCRELL. Let’s put 12 million in jail. Let’s detain 12 million. 

If you don’t want to remove them, let’s detain them. How many 

jails do we have to build? 

Mr. KRIKORIAN. Congressman, the question is based on a false 

choice. The choice is not between arresting and driving out all 12 

million illegals tomorrow, like something out of—— 

Mr. PASCRELL. You tell me what the choice is. 

Mr. KRIKORIAN [continuing]. ‘‘Ten Commandments.’’ 

Mr. PASCRELL. Tell me what the choice is. 

Mr. KRIKORIAN. The other choice being legalization. Those are 

the two—the way it is presented, that it is a sort of digital, on/off 

thing. Everybody is arrested and driven out tomorrow, or everybody gets legalized. 

The middle way is what is actually practical, which is you detain 

and deport some portion, significantly more than now, but also 

make it increasingly difficult to live a normal life as an illegal 

alien, both by getting employment, et cetera, so that self-deportation, which has already actually happened to a significant extent 

over the past 2 years, picks up and reduces the illegal population 

significantly. 

Mr. PASCRELL. Well, my time is up, and I thank you for responding to questions. 

May I have a question to Mr. Souder, because he used the—a 

statement before, and I want to know what he means by that, the 

question of—— 

Ms. SANCHEZ. Can a question from Mr. Pascrell—— 

Mr. PASCRELL [continuing]. And he doesn’t have to answer—you 

don’t have to answer the question. 

What do you mean by high-risk countries? Would you tell me? 

Because I want to write the list down of high-risk countries. 

Mr. SOUDER. We have a list through the State Department— 

Saudi Arabia, Pakistan, Yemen. 
57 

Mr. PASCRELL. But there is a number of them, not—they are not 

all in the Middle East. They are not all Muslim countries either, 

are they? 

Mr. SOUDER. Most of them. 

Mr. PASCRELL. Well, is that a good idea or bad idea? 

Mr. SOUDER. That they are—— 

Mr. PASCRELL. In other words, we are profiling countries now. 

Mr. SOUDER. Yes. 

Mr. PASCRELL. You think we should do that? 

Mr. SOUDER. We always have. We always have. 

Mr. PASCRELL. You don’t believe that is a stigma on the people 

who come here legitimately from those countries? 

Mr. SOUDER. I believe that law enforcement should be based on 

real risk. 

Mr. PASCRELL. I am sorry? 

Mr. SOUDER. I believe law enforcement should be based on real 

risk. 

Mr. PASCRELL. Well, what is risk in your mind? 

Mr. SOUDER [continuing]. Where the terrorists are coming from. 

Mr. PASCRELL. Where the terrorists are—— 

Mr. SOUDER. Where the people on the watch lists are coming 

from, where the highest risk—I mean, they have to have some sort 

of a sorting system that—in detaining, and that is why every border crossing can tell you how many people came from high-risk 

countries that are on the State Department list. 

That is why Congress always votes for this list. 

Mr. PASCRELL. Well, I think if you have a reason—— 

Mr. SOUDER [continuing]. Whether we give foreign aid to those 

countries, whether we provide military weapons to those countries. 

That is judgmental. 

Mr. PASCRELL. Risk—— 

Mr. SOUDER. Why would we not give—why would we not give 

certain weapons to countries that are—that apply for them? It is 

because they are higher risk. That is a judgment. 

Mr. PASCRELL. Well, maybe we shouldn’t give weapons to anybody. 

Mr. SOUDER. I tend to believe people who are on our side should 

get weapon systems. 

Mr. PASCRELL. Oh, you do. 

Mr. SOUDER. I believe Israel should get assistance, yes. 

Ms. SANCHEZ. I think that might be a debate on the House floor 

in International Relations Committee. I might just add that it is 

a difficult thing to see happen. 

For example, I have a sister-in-law who is French—great French 

family. When France was in Algeria, she was born there to that 

family. Her passport carries ‘‘born in Algeria.’’ 

She has no real connection to the population there, in a sense, 

and yet, you know, she is of a country of particular interest and 

gets stopped, and has questions asked, and gets detained quite a 

bit, even though there is really not that connection there, but—— 

Mr. PASCRELL. But she is a suspect before the fact. 

Ms. SANCHEZ. That is what I am saying. 

Mr. PASCRELL. Right. 

Ms. SANCHEZ. That is what I am saying. 
58 

Mr. PASCRELL. We shouldn’t be doing these kinds of—— 

Ms. SANCHEZ. Well, but—— 

Mr. PASCRELL [continuing]. Stupid things. 

Ms. SANCHEZ [continuing]. That is not really an issue of this 

committee, unfortunately, Mr. Pascrell. 

Mr. PASCRELL. Well, it has something to do with who we detain. 

I believe it does. Unless we see this gestalt here, we are never 

going to get to the—we never get beyond the symptoms, is the 

point I am trying to make. I—— 

Ms. SANCHEZ. Well, we deal with the symptoms here. Unfortunately, the policy of that is made in International Relations and it 

is made in, most likely, the Judiciary Committee, as you know. We 

have not as broad of a place to attack those types of issues on this 

committee, although we try sometimes. Okay. 

Very patiently, Mr. Green for his 5 minutes. Thank you to the 

gentleman from Texas for being here. 

Mr. GREEN. Thank you, Madam Chairwoman. 

Madam Chairwoman, the first time I read Dred Scott, I had tears 

to well in my eyes, because when I read the case I realized that 

it was the intelligentsia that perpetuated the circumstance. 

It is really not the ignorant, the—those with a lack of understanding, that can perpetuate inhumanity. The intelligentsia gets 

the job done. The others follow. 

I marvel at how we live by the notion that we should be our 

brother’s keeper until we have to keep our brother. You know, it 

is easy to be your brother’s keeper when you don’t have to keep 

your brother, when your brother doesn’t really need you, when your 

brother has all of the good things that life can offer. 

But when your brother is suffering, needs health care, when your 

brother is without employment, that is when you really find out 

who is a keeper of the brother. 

I, like some of my colleagues, find it very difficult to understand 

how we can believe that we can deport the millions who are here, 

many of whom, by the way, are not from Mexico. 

Does everyone agree that we have somewhere between 12 and 20 

million here? If you differ, raise your hand, please. 

All right, so what is your number? 

Mr. KRIKORIAN. We have slightly under 11 million illegal immigrants, based on our research. 

Mr. GREEN. All right. Let’s take 11 million. Eleven million people, by some standards all of whom committed crimes because they 

are here—by the way, I think that criminals ought to be prosecuted. All criminals ought to be prosecuted. You commit a crime, 

you ought to be prosecuted. 

Do you have, aside from the one person who has a model—is 

there other empirical evidence connoting that what we are doing is 

acting as a deterrent, what we are doing currently? If you have empirical evidence, kindly raise your hand. 

I have considered your empirical evidence. You said you had a 

model. 

Ms. NYSTROM. Congressman, I would like to submit that we cannot enforce our way out of the current situation, that we need to 

have comprehensive immigration reform to really get at the problem, and that there is no feasible model to detain and deport the 
59 

11 to 20 million undocumented immigrants currently in our country. 

Mr. KRIKORIAN. But, Congressman, could I point out that there 

is another metric of success—— 

Mr. GREEN. Well, let me hear about that at a later time. Let me 

continue, if I may, please. I appreciate your commentary, sir, and 

I don’t mean to be rude, crude, and unrefined, but I have to get 

to a point. 

My point is at a much more lofty level than we find ourselves 

having to negotiate today. I sincerely believe that at some point on 

the infinite continuum that we call time, we are all going to have 

to account for our time. 

I think that at that moment we are going to have to explain how 

we treated people who meant us no harm, who were here by an informal invitation, who were the servants. They fed us. They took 

care of us. There is no harm, and we found every—well, not every, 

but a good many means by which we could demean them and dehumanize them. 

Our complicity is somehow completely disregarded in the entire 

process. When I say ‘‘our,’’ I am talking about every business person that hires someone, those of us who have had persons come 

into our homes, those of us who have had persons to manicure our 

yards. We are all complicitous. 

When you don’t have clean hands, and you reach that point on 

the infinite continuum, I think the day of reckoning is in store for 

all of us. I regret that the intelligentsia finds—continually finds a 

means by which we can justify the ill treatment of people who 

mean us no harm. 

I yield back the balance of my time, and I just hope that this 

time has been well spent. 

Thank you, Madam Chairwoman. 

Ms. SANCHEZ. Thank you, Mr. Green. 

As we wrap up, because we are going to have votes called any 

moment also, I am going to have some more questions for the 

record that I would really like to get the opinions across the board 

from all of you on. 

But I sort of am—you know, the numbers—and of course, Doctor, 

I am very interested in your report, because it is—lays out a way 

forward that the Department of Homeland is looking at. That is 

why we will have another hearing in the new year, to look at what 

they have to say in particular. 

But I want to go back to Mr. Crane. 

Mr. Crane, do you believe in the doctrine of presumed innocent 

until proven guilty? It is a very American doctrine. 

Mr. CRANE. Yes, ma’am, I do. 

Ms. SANCHEZ. Because we have just seen, for example, a young 

American woman in the Italian system where the system is really 

you have to prove yourself out of a situation you are accused of. 

I am a little bit worried about this whole issue of locals and 

counties arresting people for alleged crimes and not having the resources, and so allowing them out, if you will, and then—and this 

sort of disconnect that is going on between some of you on the 

panel about what we really have in detention centers. 
60 

Because I think Mr. Kerwin said dangerous to others, about 11 

percent. 

Then you said some are refugees, some are in some sort of residency, some may be even citizens. 

Ms. Nystrom, you said why shackles and—or one of the two of 

you—why shackles and—you know, this type of thing. 

More open types of holding places, Doctor. 

Mr. Crane coming back to this is so dangerous to our—to us 

working in that environment, because there is, you know, so many 

criminals there—you know, so I go back to this whole thing—well, 

I would be—I would like to be presumed innocent until proven before a court, whether it is jury or some other choice, that I am— 

that I am guilty. 

So how do we—Mr. Crane, how do you, as somebody who is 

working in the system, who from your testimony seemed to say, 

‘‘We are fearful of everybody, really, because we think most of them 

are criminals,’’ versus this whole ‘‘people are presumed innocent,’’ 

versus what Mr. Kerwin and Ms. Nystrom are saying, which is 

there is a lot of innocent people in this system, maybe the only 

thing they did was break a law because they wanted to feed their 

families—how do you react to that? 

Mr. CRANE. I think, for our part, we are just—we are in a hard 

spot, because we absolutely do see that a person is proven—you 

know, is innocent until proven guilty. 

But at the same time, we see that the system is broken, that the 

system isn’t working, that these individuals are not going in front 

of a court of law, and they are not really being cleared of those 

charges at the same time and, you know, so now they are in our 

facilities. So I mean, that is the hard part for us. 

Now, if I I said earlier that we were kind of fearful of everyone, 

I didn’t really mean to say that. The biggest thing on the facilities 

that we were saying is that ICE is proposing to go to 85 to 90 percent convicted criminals in custody within the next 12 months. 

At the same time, they are going to turn these facilities into an 

open-campus environment. Yes, that does concern us very much. 

Ms. SANCHEZ. Doctor, is that the plan, or is the plan about open 

facilities about these people who you think are—have broken the 

rules because they were looking to get jobs, versus this idea of ICE 

is barreling down on people, we are getting the really, really bad 

people, we are ramming them up? 

Do you really see those type of people going into a more open sort 

of situation? Because that seems to be Mr. Crane’s concern here. 

Ms. SCHRIRO. Madam Chairwoman, I can—I could speak to my 

report but have left ICE, and so I will defer to them to explain 

some of the things that Mr. Crane has referenced. 

But in general, as Mr. Kerwin and others have referenced data 

from my report, right now the primary contributors, the sources of 

referral for individuals into ICE detention, have been first the CAP 

program—48 percent in this fiscal year of 2009 through the time 

of the writing of the report—and then an additional 12 percent 

through the 287(g) program. So that was 60 percent. 

Yet some number of them did not have criminal convictions or 

pleas. I don’t think there is much of a distinction between whether 
61 

you are pled or proven. Once you are found or admit guilt and receive a sentence, it is all the same. 

So you have got a number of people who are identified through 

the criminal justice system by virtue of an arrest but charges are 

dropped for a variety of reasons. I think Mr. Crane offers but one 

explanation for why charges are dropped and then individuals are 

referred to ICE. 

Part of that goes back to my concern about all in enforcement 

who contact individuals should be able to—should identify themselves prior to the exchange, thus the requirement for the uniforms. 

As to the management of the population, what I have said consistently—and it comports with a variety of disciplines, including 

the corrections arena from which I come—and that is that there 

are valid assessment instruments and that one applies them correctly. 

Then having identified an individual risk, either risk of absconding if they are placed on community supervision, or risk in terms 

of propensity for violence if they are held in a detention facility, 

that that, in concert with their assessed needs, particularly health 

care but others as well—that those would inform the placement. 

So the physical plant is one of the ways in which you carry out 

the plan for the period of detention pending the decision for either 

relief or for removal. 

So in correctional systems, there are a variety of housing strategies and supervision strategies that are established, and in wellrun systems they are consistent with that assessed need and risk. 

Ms. SANCHEZ. Thank you, Doctor. 

Mr. SOUDER. Can I make one brief comment? 

Ms. SANCHEZ. Yes. 

Mr. SOUDER. One brief comment I would like to add is some of 

this isn’t as contradictory as it seems because of what I referred 

to earlier as is ICE is indeed trying to, in my opinion, cherry-pick, 

which is distorting and will increasingly distort the mix that they 

have. 

Mr. Krikorian was referring to a broader pool, and one of the 

challenges that Mr. Pascrell was addressing was if we actually get 

E-Verify, we start to remove, do penalties on business men, we are 

going to get a different mix of the ICE mix, but then you would 

need—you know, we are still arguing whether we detain those, or 

whatever. 

The last point I would—I would make with that is that visa 

overstays are becoming a bigger, bigger problem. 

People say they are in legally and, in fact, if you have visa overstayed, as Mr. Krikorian pointed out, you probably have driver license, bank accounts, all sorts of other illegal activities with that, 

too. 

This does not mean you are violent, but that you might have 

multiple crimes. 

Ms. SANCHEZ. Of course, that is one of the reasons why we are 

looking at that new assessment program, and Visa Waiver Program, et cetera, et cetera, also under the jurisdiction of this committee. 

I am sure we will have more in writing to ask you. 
62 

Mr. SOUDER. Before my friend leaves, this is the only hearing 

where I have asked two rounds of questions and been a witness—— 

Ms. SANCHEZ. Well, you know, we aim to please here. We are trying very hard to get our hands around what is going on. 

So I want to thank the witnesses for your valuable testimony 

and, of course, the Members for their interaction, very spirited at 

times. 

The Members of the subcommittee may have additional questions 

for the witnesses, and we will ask you to respond in writing to 

those questions quickly if you can. 

Hearing no further business, this subcommittee is adjourned. 

[Whereupon, at 11:48 a.m., the subcommittee was adjourned.] 
(63) 

A P P E N D I X 

QUESTIONS FROM CHAIRWOMAN LORETTA SANCHEZ FOR DORA SCHRIRO

Question 1a. The detention report ICE released this October is the result of extensive research you conducted on the current state of immigration detention in this 

country during your time as director of the ICE Office of Detention Policy and Planning. 

Are there additional challenges, not mentioned in the report, that also need to be 

addressed and what are your recommendations for dealing with those issues? 

Answer. Response was not received at the time of publication. 

Question 1b. What areas will pose the greatest challenges for detention reform? 

Answer. Response was not received at the time of publication. 

Question 2. One of the key detention reforms announced is the move from a criminal detention model to a civil detention model. 

Please expand on the differences between criminal and civil detention models and 

why immigration detention facilities should be run differently than the current 

penal system? 

Answer. Response was not received at the time of publication. 

Question 3. There is concern that a civil detention model might be too ‘‘soft’’ and 

not sufficiently secure or may fail to act as a deterrent for would-be detainees. 

What is your response to these criticisms? 

Answer. Response was not received at the time of publication. 

QUESTIONS FROM CHAIRMAN BENNIE G. THOMPSON FOR DORA SCHRIRO

Question 1a. The current immigration detention system is a sprawling network, 

with contract and intergovernmental service agreements composing the majority. 

Are the contract detention facilities currently capable of meeting the proposed 

standards of treatment for non-criminal detainees? 

Answer. Response was not received at the time of publication. 

Question 1b. What do the announced changes to detention policy mean for current 

contractors? 

Answer. Response was not received at the time of publication. 

QUESTIONS FROM CHAIRWOMAN LORETTA SANCHEZ FOR CHRISTOPHER L. CRANE

Question 1a. Your testimony and published reports mention that written guidance 

to field offices is limited. 

How does Detention and Removal (DRO) staff stay abreast of changes in policy 

and procedures made by ICE headquarters? 

Answer. In most cases, DRO staff is not aware of the majority of agency policies 

and procedures and/or the associated changes. In fact, policies and procedures are 

generally different from office to office, and often change from day to day. Generally 

speaking, this begins with poorly thought-out policies at the ICE Headquarters and 

Field Office levels, which lack much-needed input from the field. Poorly planned 

policies not only fail quickly in the field once implemented, but also create new 

problems that did not previously exist. ICE Headquarters and Field Office supervisors are then reluctant to admit failure and are insistent on staying the course 

with newly implemented policies and procedures. It is then left to DRO staff and 

managers in the field to overcome the obstacles created by the failed policies. In 

some cases, problems become so prevalent that policy makers are forced to make 

changes. Unfortunately, these changes also lack input from the field, and typically 

fail as well. At this point, in a frantic attempt to resolve problems, a reactionary 

cycle of day-to-day changes occurs. DRO Staff in the field is literally directed to perform the same duties differently on a day-to-day basis, often returning to the same 

failed procedures they started with. Throughout this process there is a complete 

lack of communications with and/or training for staff on these new policies and pro-
64 

cedural changes. The end result is the very chaotic, stressful, and often unproductive environment that DRO employees work in every day—just one of many reasons 

why employee surveys conducted by ICE confirm that the morale of DRO employees 

ranks as one of the lowest of all Federal agencies. 

However, most policies and changes involve no interaction between DRO staff and 

DRO managers and supervisors. ICE Headquarters, as well as ICE Field Office supervisors and ICE Employee Labor Relations staff, rely almost solely on email and 

website postings for all communications with employees. Sadly, both managers and 

supervisors are fully aware that DRO staff lack the time while at work to read the 

large number of daily emails, lengthy policies, or browse through the ICE website 

in search of ICE policies. ICE has a ‘‘check the box’’ management style in which the 

only concern is to be able to say that ‘‘yes’’ the employees were sent the policy or 

changes and can now be held accountable for not following them. ICE managers and 

supervisors, for the most part, do not conduct training, allow for questions, or make 

sure time is available for DRO staff to read new policies, and overall do not ensure 

that policies are read or understood by employees. With all due respect to ICE managers and supervisors, it is a truly lazy and negligent way to conduct operations, 

which results in not only ineffective communication but also a significant lack of 

knowledge regarding ICE policies by DRO employees in the field. 

Question 1b. What would you suggest to improve communication of changes to 

policy with staff in the field? 

Answer. ICE needs to begin by returning to the basics of good management. ICE 

needs to ensure that ICE managers and staff in the field receive proper training 

on new policies and procedural changes, have an opportunity to ask questions, and 

truly understand new policies and procedural changes. Time must be allotted to 

properly train and educate employees. It is an investment in our most important 

asset, Human Resources, as well as the agency itself. If conducted properly, these 

types of briefings or classes at local offices and facilities could greatly increase understanding and awareness by DRO staff and managers in AFGE National Council 

118—ICE, Inquiry by the U.S. House of Representatives, Committee on Homeland 

Security the field. We need our managers and supervisors to come out of their offices, communicate with and listen to employees, and manage from a more informed 

position. Of course, briefings and classes held at local offices would create little if 

any additional expense to the agency. 

The Union also has a very important part to play in communications between 

DRO managers and DRO staff regarding policy and procedural changes. That communication should begin at the policy development stage and continue through employee education. This would improve not only education and understanding, but 

dramatically improve the quality of policies and morale in the field. Unfortunately, 

DRO managers and Employee Labor Relations staff are strongly anti-union, antiemployee rights, and harass anyone involved in the Union, sending a chilling effect 

throughout the workforce. A letter outlining these problems was sent to DHS Secretary Janet Napolitano and given to ICE Assistant Secretary John Morton almost 

1 year ago. Those reports have been ignored. The Office of Inspector General or 

other outside investigative group such as the General Accountability Office (GAO) 

must be brought in to investigate and report on this situation. As long as the oversight is retained internally, both at ICE and at the Departmental level, no progress 

will be realized and ICE will continue on its present course. 

Question 2a. It is apparent that ICE has come to rely heavily on contractors for 

bedspace and to administer its detention program. 

Are Contract Detention Facilities and Intergovernmental Service Agreement facilities held to the same standards as ICE-run facilities? 

Answer. Policy-wise yes, but in practice no. DRO officers in the field report that 

while the same detention standards apply to Contract Detention Facilities and ICErun facilities, they are often applied differently in the case of Contract Detention 

Facilities. DRO officers report that contract staff and managers in Contact Detention Facilities are less likely to report standards violations than are ICE employees 

in ICE-run facilities, stating that contractors are often more concerned that exposing the violations could potentially mean the loss of the ICE contract. Similarly, 

DRO officers report that ICE managers are more inclined to ‘‘make violations go 

away’’ in contract facilities because they are dependent on the facility for bedspace 

and don’t want to lose the contracted facility. DRO managers seem more willing to 

address problems in ICE facilities because they have more authority with ICE employees and are less concerned that an ICE facility might be shut down due to 

standards violations. 

Intergovernmental Service Agreement facilities (IGSAs) are a much more complex 

issue, in part because there are so many and the facilities themselves vary greatly. 

My personal background has been working in and with the IGSA facilities. Gen-
65 

erally speaking, problems sometimes do exist in the IGSAs in terms of detention 

standards. The most prevalent are standards involving access to legal libraries and 

other issues such as phone calls. As with the contract facilities, I believe ICE managers are often reluctant to report standards violations because they are afraid to 

lose the bedspace. However, I have observed a larger problem with ICE managers 

who simply ignore standards violations in the IGSAs because there is no real oversight or accountability. Basically, they can get away with and they know it. Another 

major issue preventing progress in the IGSAs with improving standards are the 

DRO supervisors and contract inspectors who actually visit the IGSAs. Deputies 

working in an IGSA in my area reported that their supervisors were furious when 

ICE managers came into a meeting with jail staff ‘‘barking orders,’’ instead of diplomatically and respectfully seeking a resolution to problems. That IGSA subsequently refused to work with ICE. Contact inspection teams had a similar disrespectful and authoritative approach in which AFGE National Council 118—ICE, 

Inquiry by the U.S. House of Representatives, Committee on Homeland Security 

IGSAs have responded by telling ICE to take its business elsewhere instead of improving standards for ICE detainees. 

I would like to close this answer by saying that the majority of IGSAs, in my experience, are quality facilities with quality staffs and effective oversight. IGSA staff 

members are generally deputies who have been through rigorous background checks 

and are very well trained—much like DRO officers and agents. While there are certainly some bad IGSAs, there are a lot more that are highly efficient facilities. ICE 

has largely been at fault for not nurturing relationships with the IGSAs and attempting to resolve and remove standards violations, as well as discontinuing the 

use of IGSAs that are problematic. For most ICE offices across the United States, 

prohibiting or greatly restricting the use of IGSAs will have a very negative impact 

on ICE and its ability to perform its mission. 

Question 2b. What services or advantages do contractors provide that ICE does 

not? 

Answer. I am not aware of any services provided by contractors that ICE is unable to provide. The only advantage offered by contractors is the ability to hire large 

numbers of employees to work in these facilities in a very short period of time. However, this advantage has proven to be more of a disadvantage as this quick and easy 

workforce has proven to be both dangerous and untrustworthy. As just one example, 

contractors at the Northwest Detention Center in Tacoma, Washington hired 97 contract guards without conducting background checks because of pressure to quickly 

hire guards for the facility. ICE did not catch the process for 2 years. 

As I stated in my earlier testimony, ICE does not have a ‘‘Detention Officer’’ position. However, the Legacy INS did have a position called a Detention Enforcement 

Officer which ended shortly after ICE was created. This position did not have immigration arrest authority and was specifically designed to perform the detention and 

transportation functions currently needed by ICE. This position could easily be 

brought back into use by ICE. 

Question 2c. What services currently provided by a contractor could be better provided by ICE? 

Answer. I believe that just about any service could be better provided by ICE employees. The only exceptions to this might be services such as food services. Detention functions such as overseeing detainees, transportation functions, and maintaining detainee property would all most certainly be handled far more efficiently by 

ICE employees. Also, all administrative and support functions such as training assistants, research, data entry and records checks, travel clerks, and information 

technology personnel, etc. As just one example, contract clerks do not have the detailed professional knowledge that ICE Detention and Removal Assistants possess. 

Contract clerks do not know how to use ICE database systems, nor do they have 

the ability to review and differentiate between cases, or identify problems that may 

require immediate attention by ICE officers and mangers. 

Before being hired, ICE employees must meet high qualification standards regarding educational background and work experience and are thoroughly screened 

through examination as well as extensive background investigations. Typically, out 

of hundreds or even thousands of applicants Nation-wide, only a few will be selected 

for hiring. While this process may be somewhat time-intensive, it produces a far 

more qualified employee and diversified workforce than does the far less extensive 

hiring process used by contractors. Criminal and financial background investigations conducted prior to the hiring of ICE employees make it far less likely that ICE 

employees would be involved in issues currently prevalent AFGE National Council 

118)—ICE, Inquiry by the U.S. House of Representatives, Committee on Homeland 

Security among contractors conducting ICE work such as smuggling contraband, 
66 

drug distribution, fraud, theft, and sexual misconduct. I addressed this problem in 

greater detail in my original written testimony on December 10, 2009. 

As long as hiring standards for ICE employees are maintained, ICE DRO employees will always provide far superior services than contract employees. 

QUESTIONS FROM CHAIRMAN BENNIE G. THOMPSON FOR CHRISTOPHER L. CRANE

Question 1a. In your testimony, you stated Detention and Removal Operations 

(DRO) is ‘‘drastically understaffed and overworked,’’ and that these conditions contribute to attrition. 

Please elaborate on the reasons for attrition at DRO. 

Answer. Surveys consistently show that the morale of ICE employees ranks 

among the lowest of all the Federal agencies. ICE offices and facilities are generally 

drastically understaffed. In spite of this fact, ICE DRO managers continue to increase the workload, duties, and responsibilities of DRO employees. At the same 

time, ICE employees are among the lowest paid within DHS. As reported during my 

testimony on December 10, 2009, Detention Removal Assistants (DRAs) and Immigration Enforcement Agents (IEAs) hold only GS–7 and GS–9 pay grades respectively, and have no promotion ladder to higher level positions. While higher paying 

positions do exist within ICE, most DRO employees view ICE DRO hiring and promotional practices as lacking credibility and untrustworthy. For this reason, two of 

the largest employee groups within ICE (DRAs and IEAs), do not consider their jobs 

to be ‘‘careers’’ because advancement to higher-paying positions does not exist in the 

form of career ladders or through an open and fair internal application process 

where selections are based upon merit. The majority of ICE employees are always 

open to or looking for opportunities in other agencies which allow better working 

conditions and quality of life, as well as higher pay and career advancement. 

Employee workload is a big problem within ICE which I believe can best be illustrated through example. The Illegal Immigration Reform and Immigration Responsibility Act of 1996 mandated that the Criminal Alien Program (CAP) be transferred 

internally from the INS (now ICE) Office of Investigations to DRO. When this transfer had not occurred by 2003, a 10-year implementation plan was established. 

Former ICE Assistant Secretary Julie Myers reduced that time to just 2 years. In 

Salt Lake City, Utah, the DRO Field Office director mandated that his office would 

take over CAP 6 months prior to the 2-year mandate set by A.S. Meyers. 

When Utah DRO took over the CAP program, it was drastically understaffed with 

approximately 7–8 IEAs State-wide. These same employees were already performing 

other full-time duties. As part of the 2-year ‘‘transition plan,’’ DRO Utah received 

no training, no increase in personnel (IEAs) to perform the new CAP duties, and 

did no transition with the ICE Office of Investigations. In effect, there was no planning and no transition. The existing IEAs were immediately unable to handle the 

increased workload. Complaints from local jails came pouring in that ICE was not 

doing its job and that dangerous criminals were being released into Utah communities. As a result, DRO managers immediately put pressure on IEAs and their 

managers to increase CAP arrests. Some IEAs resorted to performing their regular 

duties during the day, and spending nights and weekends working local jails for 

CAP to increase arrest statistics. To make matters worse, the Field Office Director 

announced plans to implement a 24-hour command center in Salt Lake City which 

would also be manned by the 3 to 4 IEAs in Salt Lake City who were already working around the clock. The mandates set by both ICE Headquarters and the Field 

Office Director lacked proper planning and resources which resulted in obvious failures in the field and unbearable working conditions for DRO employees. Yet in 

ICE’s internal newsletter, ICE victoriously proclaimed, ‘‘CAP TRANSFER COMPLETED IN RECORD TIME.’’ The statement is accurate; it was completed in record 

time, but what ICE failed to admit was that it was a complete failure in many areas 

because of lack of planning and allocation of proper human resources. Utah DRO 

offices still suffer from the negative effects of this poorly planned implementation. 

Unfortunately, this is the manner in which ICE conducts business Nation-wide. 

New programs and policies are implemented without proper planning and without 

obtaining needed resources first. Managers do not hold themselves accountable, but 

instead place the burden on their employees. Initiatives like the Secure Communities program, for example, already promise similar problems for our already overworked and understaffed workforce. ICE’s management practices are in need of serious review. Obviously, no person wants to work around the clock in these types of 

conditions and that will affect attrition, but in a big picture sense, if DRO does not 

have the staff to effectively perform its assigned mission, American communities are 

placed at risk. 
67 

Question 1b. How does ICE recruit and retain staff? What can be done to improve 

these efforts? 

Answer. I am not aware of any efforts by ICE to recruit or retain staff in ICE 

DRO. If it is happening, I have never personally seen it used in the field, and the 

AFGE ICE Council is not aware of it. The management culture within ICE does not 

appear to appreciate or understand the significant amount of taxpayer dollars spent 

to screen and train Federal employees. As just one example, I have personally heard 

ICE supervisors in my own office (DRO Salt Lake City) tell employees, ‘‘if you don’t 

like it, leave.’’ These remarks are made by DRO managers to good employees who 

the agency desperately needs in its understaffed offices. At the time these statements were made, I believe our office was at approximately a 40 percent staffing 

level. As a National Union officer, it is my opinion that this appears to be the overall attitude toward employee retention throughout ICE DRO and ICE Employee 

Labor Relations. The DRO management culture, in large part, views employees as 

expendable and replaceable. As a Union, and as employees, we know that simply 

is not the case. 

In terms of recruiting and retention, ICE DRO must achieve pay parity for its employees and create career ladders that offer career advancement. ICE currently cannot compete with other agencies at either recruiting new employees or retaining current ones. ICE must also invest in local recruiting programs so that ICE has a presence at local job fairs and similar functions aimed at attracting and recruiting highly qualified candidates. With actions like the recent upgrading of 50,000 officers in 

Customs and Border Protection to GS–12, the worst of ICE’s recruitment and retention problems are yet to come. 

In terms of retention alone, staffing numbers must be increased, promotional 

practices must be reformed to ensure promotions are based on merit, and working 

conditions must be improved. The American public would be highly disappointed if 

they knew of the activities taking place within ICE. As employees, Union representatives, and taxpaying U.S. Citizens, DRO employees are always shocked to see that 

funding and outside groups are provided to research, investigate, and address issues 

like detention reform, but a similar investment is not made in researching problems 

like discrimination, harassment, retaliation, lack of oversight, and abuse of authority, which negatively impact every function performed by ICE. As long as DHS and 

ICE ignore these problems, morale will suffer and DRO employees will be seeking 

a better place to work. 

Stories of harassment, retaliation, and overall inappropriate behavior by managers and supervisors with the Federal Air Marshal Service surfaced in the media 

this week. Reporters, members of the public, and members of the United States 

Congress are expressing concern as they recognize the negative effects that these 

activities have on the agency’s ability to accomplish its mission. It should not be forgotten that the Federal Air Marshal Service was a part of ICE, and therefore its 

supervisors came from the ICE management culture. ICE DRO and its employees 

are struggling with the same problems now being experienced by the Federal Air 

Marshal Service. For DRO employees, harassment, retaliation, false investigations 

of employees, and practices by managers that place the public at risk are commonplace. 

Question 2a. Given the rate of staff turnover at ICE Detention and Removal, 

please describe the present DRO workforce. 

How many years of experience on average does a Detention Officer or Immigration Enforcement Agent possess? 

Answer. Mr. Chairman, I apologize but I do not have access to this information. 

However, it should be available from the Human Capital Officer of ICE. 

Question 2b. What are the implications for detention management? 

Answer. Even the best policies and/or legislation regarding detention management 

will not succeed if reforms are not made within ICE. While effective policies are certainly an important part of efficient detention management, it is the personnel conducting the work who truly determine its success or failure. Policy and standards 

violations by contract workers have substantiated this fact. If issues regarding pay 

parity, understaffing, poor management, and hostile working conditions persist 

within ICE, more employees will be leaving ICE and the ability to recruit quality 

personnel will continue to decline. ICE will then in all probability be forced to maintain and possibly increase its dependence on contract workers who have proven 

themselves detrimental to a safe, efficient, and ethical detention setting within ICE. 

The detention environment, by its very nature, will always provide opportunities 

for those that would take advantage of others. Likewise, it is an environment in 

which inadequate staffing translates to inadequate attention to those entrusted to 

our care. Effective detention management within ICE will rely more on the quality 

and quantity of staffing than any other factors. Therefore, it is imperative and in 
68 

1Letter from Dora Schriro, Special Advisor, Office of the Assistant Secretary, U.S. Immigration and Customs Enforcement, to Donald Kerwin, Vice President for Programs, Migration Policy Institute (received July 2, 2009). 2 U.S. Department of Homeland Security (DHS), ‘‘ICE Detention Reform: Principles and Next 

Steps’’ (Fact Sheet, October 6, 2009), http://www.dhs.gov/xlibrary/assets/ 

pressliceldetentionlreformlfactlsheet.pdf. 3 C–SPAN Video Library, ‘‘Obama Administration Immigration and Customs Policy,’’ (speech 

delivered by ICE Assistant Secretary John Morton at the Migration Policy Institute, Washington, DC, January 25, 2010), min. 54–59, http://www.c-spanvideo.org/program/291598-1. 4Dr. Dora Schriro, Immigration and Detention Overview and Recommendations (Washington, 

DC: Immigration and Customs Enforcement, October 6, 2009), http://www.ice.gov/doclib/ 

091005liceldetentionlreport-final.pdf. 5Schriro, Immigration and Detention Overview and Recommendations, 20–21. 

the best interest of the American public, that contractor personnel are reduced or 

eliminated and ICE retain its own workforce to manage this most important responsibility. 

As previously stated, however, in order to recruit and retain a quality workforce, 

ICE must first determine the level of human resources needed to manage these initiatives and then must compensate its employees so that the pay scales are comparable to other DHS bureaus. Until ICE acknowledges this disparity and corrects 

it, it will be impossible to efficiently manage these responsibilities and will be forced 

to continue to rely on contractor personnel. 

QUESTIONS FROM CHAIRWOMAN LORETTA SANCHEZ FOR DONALD M. KERWIN, JR. 

Question 1a. Given the high cost of maintaining and running detention facilities, 

there is great interest in the development of a robust Alternatives-to-Detention 

(ATD) program. 

Do you have any estimates on the difference in costs between the cost of enrolling 

an individual in one of the three current ATD programs and the cost of housing an 

individual in a detention facility? 

Answer. In July 2009, Dora Schriro, the former Director of the Office of Detention 

Policy and Planning (ODDP) at Immigration and Customs Enforcement (ICE), reported to the Migration Policy Institute (MPI) that ICE does not collect ‘‘complete 

and accurate information’’ that would allow the agency to assess the cost of its three 

alternative-to-detention (ATD) programs.1 Nonetheless, in the same letter, ICE estimated the contract costs for the three ATD programs to be: 

• Intensive Supervision Appearance Program (ISAP) $14.42 per day; 

• Enhanced Supervision Reporting Program (ESR) $8.52 per day; and 

• Electronic Monitoring Program (EM) 30 cents to $5 per day, depending on the 

technology used. 

These costs do not include expenses such as Detention and Removal Operations 

staff time and Fugitive Operation Team activities. 

By way of contrast, housing an individual in a ‘‘hard’’ detention facility can cost 

in excess of $100 per day.2

In a January 25, 2010 speech at an MPI leadership forum, ICE Assistant Secretary John Morton stressed that ATD costs can be further limited by processing 

the removal cases of program participants on an expedited basis. Morton stated that 

ideally, these cases would be fast-tracked in immigration court dockets and heard 

within 40 to 60 days.3

Dr. Schriro made the same point in her October 2009 report titled ‘‘Immigration 

Detention Overview and Recommendations.’’4 Schriro recommended that ‘‘the average length of time an alien spends in an ATD program should be monitored to ensure it is comparable to aliens who are detained, in order to maximize the number 

of successful completions and reduce overall spending.’’5

Question 1b. Beyond the three ATD programs, are there other programs that you 

can recommend that would be more cost-effective? 

Answer. A number of cost-effective ATD programs were developed and tested by 

non-governmental organizations in the 1990s. Successful ATD programs: 

• Enjoy high levels of program compliance; 

• Offer a cost-effective alternative to hard detention; 

• Utilize careful screening procedures to determine risk; and 

• Minimize restrictions on participants based on assessed risk. 

Programs run by the Vera Institute of Justice, Catholic Charities of New Orleans, 

and Migration and Refugee Services (MRS) of the United States Catholic Conference 

all employed various strategies to try to achieve the goals described above. 
69 

6Oren Root, The Appearance Assistance Program: An Alternative to Detention for Noncitizens 

in U.S. Immigration Proceedings (New York: Vera Institute for Justice, 2000), 1, http:// 

www.vera.org/download?file=209/aaplspeech.pdf. 7 Ibid, 2. 

8 Ibid, 3–4. 

9 Ibid, 5–7. 

10 Ibid, 8. 11 Catholic Legal Immigration Network, Inc (CLINIC), The Needless Detention of Immigrants 

in the United States (Washington, DC: CLINIC, 2000), 26–27. 12 Ibid, 27–28. 13 Ibid, 28. 14Schriro, Immigration and Detention Overview and Recommendations, 2–3. 15 Ibid. 16 Root, The Appearance Assistance Program: An Alternative to Detention for Noncitizens in 

U.S. Immigration Proceedings, 2. 17Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities? (Washington, DC: Migration Policy Institute, 

September 2009), http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf. 18 Ibid, 1. 19Schriro, Immigration and Detention Overview and Recommendations, 2. 

In 1996, the former Immigration and Naturalization Service (INS) contracted with 

the Vera Institute of Justice to run a 3-year pilot ATD program.6 The program 

sought to ‘‘maximize release and community supervision at the beginning of a person’s case and maximize detention at the moment that person loses his or her 

claim.’’7 The program: • Helped participants secure legal representation; • Provided information about the immigration court process; and • Stressed the consequences to participants of not appearing at immigration hearings (‘‘absconding’’).8

Individuals enrolled in Vera’s pilot program demonstrated a ‘‘high rate of compliance with hearing requirements’’ when compared with similarly situated persons 

who had been initially detained and then released to await their hearings.9 The 

study concluded that such programs were ‘‘not only smart public policy, but fiscally 

prudent and humane.’’10

In 1998, Catholic Charities of New Orleans administered a program for indefinite 

detainees that provided participants with housing, job counseling, and assistance in 

accessing social services. Participants were carefully screened: Only persons determined not to pose a flight risk or a danger to the community were eligible to participate. Participants who did not comply with program requirements were reported to 

INS and placed in detention. However, only one of the program’s 21 participants 

was redetained. Catholic Charities ultimately judged the ATD program to be a safe, 

practical, and less costly alternative to indefinite detention.11

From 1987 to 1999, Migration and Refugee Services administered a program for 

so-called ‘‘Mariel’’ Cubans that offered housing, employment counseling, and advice 

on how to access social services. MRS carefully screened potential participants, and 

reported individuals who did not adhere to program requirements to INS. Ultimately, the program cost dramatically less than the continued detention of these individuals.12 The program served approximately 50 to 60 persons per year and enjoyed a compliance rate with the program’s conditions of roughly 75 percent.13

Question 2a. The ICE report released in October and your research indicate a 

high number of detainees in custody do not have criminal records. This finding is 

particularly striking in light of efforts to prioritize criminal aliens. 

Please elaborate on the impact of detaining non-criminal aliens. 

Answer. According to the October 2009 Schriro report, ‘‘with only a few exceptions, the facilities that ICE uses to detain aliens were built, and operate, as jails 

and prisons to confine pre-trial and sentenced felons.’’14 This criminal detention 

model is more costly and restrictive than necessary as a means to ensure court appearances by non-criminal detainees.15 In addition, detaining noncriminal immigrants is not an effective way to prioritize use of ICE’s limited detention space.16

Persons without criminal records make up a substantial portion of ICE detain- ees.17 According to an MPI analysis, 58 percent of persons in ICE custody on the 

night of January 25, 2009 did not have criminal records.18 In addition, Schriro’s report noted that only 66 percent of ICE detainees on September 1, 2009 were mandatory detainees and that ‘‘the majority of the [detainee] population is characterized 

as low custody, or having a low propensity for violence.’’19

Beyond the financial cost, detention can have a considerable impact on the welfare and heath of immigrants, both those who have and those who do not have 

criminal records. As has been well documented, detention can prevent detainees 

from meaningfully pursuing legitimate immigration claims, securing legal represen-
70 

20 U.S. Immigration and Customs Enforcement. ‘‘Alternatives to Detention for ICE Detainees,’’ 

(Fact Sheet, October 23, 2009), http://www.ice.gov/pi/news/factsheets/ 

2009limmigrationldetentionlreforms.htm. 21 Ibid. 22Schriro, Immigration and Detention Overview and Recommendations, 20. 23Testimony of Donald Kerwin, ‘‘Moving Toward More Effective Immigration Detention Management,’’ before the House Subcommittee on Border, Maritime, and Global Counterterrorism, 

December 10, 2009, 5, http://www.migrationpolicy.org/pubs/Testimony-12-10-2009.pdf. 24DHS, ‘‘ICE Detention Reform: Principles and Next Steps.’’ 25See, e.g., Young v. INA, 208 F. 3d 1116, 1118 (9th Cir. 2000) (release to halfway house held 

to be a form of civil custody). 26Testimony of Donald Kerwin, ‘‘Moving Toward More Effective Immigration Detention Management,’’ 6. 

1Kerwin and Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities?. 2 C–SPAN Video Library, ‘‘Obama Administration Immigration and Customs Policy,’’ min. 37– 

40. 

tation, and maintaining contact with family members. Detention conditions can be 

especially traumatic for asylum seekers and torture survivors. 

Question 2b. Has a lack of ATD options played a role in the detention of noncriminal aliens? 

Answer. According to its most recent estimates, ICE has the ability to accommodate roughly 18,000 individuals in ATD programs on a daily basis.20 The individual 

ATD programs can respectively accommodate: 

• 6,000 persons—Intensive Supervision Appearance Program (ISAP); 

• 7,000 persons—Enhanced Supervision/Reporting (ESR); and 

• 5,000 persons—Electronic Monitoring (EM).21

ATD programs are not available throughout the country.22 In addition, ICE needs 

to improve its ability to assess the flight and safety risks presented by potential program participants.23 ICE plans to develop ‘‘a Nation-wide implementation plan’’ for 

its ATD program and a more comprehensive risk assessment tool to guide its placement decisions.24

Finally, if properly structured, ATD programs could be considered alternate forms 

of detention, and thus made available to mandatory detainees. As I stated in my 

testimony: 

‘‘[m]andatory detention laws broadly cover significant numbers of persons who, with 

proper supervision, would not be a flight risk. Given that 66 percent of ICE detainees must be detained,25 the significant expansion of alternative-to-detention programs—and the resulting cost savings to the government and benefits to the affected individuals—will depend on whether alternatives to detention are found to be 

soft detention or constructive custody.’’26

QUESTIONS FROM CHAIRMAN BENNIE G. THOMPSON FOR DONALD M. KERWIN, JR. 

Question 1. Your organization released a report in September that raised the issue 

of whether ICE has the capacity to comply with its own National detention standards. Specifically, the report cited serious lapses in ICE’s information systems. Illustrating this point, ICE disclosed this past August that 10 persons whose deaths had 

not previously been reported had apparently died in custody between 2004 and 

2007. 

If ICE lacks the capacity to track the number of detainee deaths that occur in 

its custody, how can the agency comply with the law and detention standards? How 

do you recommend ICE rectify these capacity problems? 

Answer. In September 2009, MPI released a report exploring whether or not the 

information tracked by ICE’s central database—known as ENFORCE—allowed the 

agency to abide by its National detention standards.1 The report uncovered a number of anomalies in the information tracked by ICE. One of the report’s most striking findings was that ENFORCE did not appear to track detainee deaths; a separate 

database and protocol exists for this purpose. 

On January 25, 2010, ICE Assistant Secretary John Morton stated that ICE had 

modified its protocol for reporting and investigating detainee deaths.2 However, it 

is still not certain whether ICE tracks deaths and other legally and operationally 

significant detainee information in the ENFORCE database. To our knowledge, ICE 

has not shared with Congress or other stakeholders a complete list of the detainee 

information tracked in ENFORCE or its manual, which describes ENFORCE’s database fields and how ICE collects and records detainee information. 
71 

3Kerwin and Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities, 25. 4 Ibid, 37. 

5Susan Carroll, ‘‘Flaws found in options for immigrant detention,’’ Houston Chronicle, October 

20, 2009, http://www.chron.com/disp/story.mpl/metropolitan/6675443.html. 6 Ibid. 

7Testimony of Donald Kerwin, ‘‘Moving Toward More Effective Immigration Detention Management,’’ 5. 8 Root, The Appearance Assistance Program: An Alternative to Detention for Noncitizens in 

U.S. Immigration Proceedings, 3–4; Megan Golden, Oren Root, and David Mizner, The Appearance Assistance Program: Attaining Compliance with Immigration Laws Through Community 

Supervision (New York: Vera Institute for Justice, 1998), 10–13, http://www.vera.org/ 

download?file=211/aap.pdf. 9 Root, The Appearance Assistance Program: An Alternative to Detention for Noncitizens in 

U.S. Immigration Proceedings, 3–4. 

As the MPI report proposed: 

‘‘ICE [should] initiate a thorough inventory and review of its information systems, including ENFORCE, to ensure that they allow for informed decisions related to the substance and timing of: 

• ‘‘who ICE must detain and who it must consider for release, with a particular 

focus on when ‘mandatory’ detainees become eligible for release; • ‘‘which detainees must be allowed to participate in ICE’s two post-removal 

order, custody review processes; • ‘‘who should be placed in ICE’s alternatives to detention programs; and • ‘‘ICE’s adherence to its National detention standards.’’3

ICE should also ‘‘examine how ENFORCE relates to other databases within the 

Department of Homeland Security and other Federal agencies.’’4 Finally, ICE should 

make public its information systems manual and its protocols for collecting information from detainees. 

Since developing civil detention standards is at the core of immigrant detention 

reform, improvements in ICE’s information systems should allow the agency to comply with current detention standards and position it to comply with the new standards once they are developed. 

Question 2. This past October, the Houston Chronicle obtained data that raised 

questions about the effectiveness of two of the three existing ATD programs. In one 

program, nearly one in five participants absconded while under supervision during 

the past 5 years. 

What contributed to the program mismanagement? How can these programs be 

improved? 

Answer. The Houston Chronicle questioned ICE’s reporting on the success of its 

ATD program.5 In its evaluation of its ATD program, ICE had reportedly failed to 

count as program participants those persons who had absconded from the program. 

As a result, court appearance rates, while still high under the ISAP program (roughly 82 percent), were not as high as the 99 percent rate previously reported by ICE 

based on its faulty methodology.6

Compliance with ATD program requirements—namely, the requirement that program participants appear at their scheduled hearings—could be improved through 

the implementation of a more reliable risk assessment tool, coupled with efforts to 

expedite the removal cases of ATD program participants. The longer participants remain in ATD programs, the more likely they are to abscond.7

Providing ATD program participants with assistance in securing legal counsel and 

with information about the removal process—especially the consequences of not appearing—should also be core components of any ATD program. These factors have 

proven vital to ensuring high court appearance rates in ATD programs.8

Ultimately, ATD programs will be more successful if they are made available to 

individuals while their removal cases are pending, rather than relied upon to ensure 

people’s appearance for their actual deportations. The possibility of prevailing in 

their removal cases, coupled with the knowledge that this represents their only 

chance to remain lawfully in the United States, will compel program participants 

to appear for their court hearings.9

Question 3. According to the Dora Schriro report, approximately 50 percent of the 

immigrant detainee population is housed in shared-use county jails. ICE only owns 

and operates seven facilities Nation-wide. 

Does immigrant detainee care suffer because ICE does not own or operate a larger 

share of facilities? What type of facility provides the best care and why? 

On January 25, 2010, Assistant Secretary Morton described the immigrant detention system as a ‘‘sprawling network of contract facilities that are uneven in their 
72 

10 C–SPAN Video Library, ‘‘Obama Administration Immigration and Customs Policy,’’ min. 

30–32. 11DHS, ‘‘ICE Detention Reform: Principles and Next Steps.’’ 

1Memorandum from Joseph E. Langlois to Asylum Office Directors and Deputy Directors, 

Nov. 8, 2007, 120/9.15, available at http://www.uscis.gov/files/pressrelease/ 

CredibleFear110807.pdf. 

design, uneven in the kinds of conditions that they offer, [and] uneven in the kinds 

of medical services that they provide.’’10 The degree to which private contractors 

manage, oversee, and operate the ICE detention system—and the disparate conditions in these facilities—continues to surprise even close observers of the immigration detention system. 

ICE is addressing the need for increased detention oversight through plans to hire 

Federal employees to provide on-site oversight at the facilities that house more than 

80 percent of its detainees.11

The ICE facilities providing the best care tend to be those few that do not operate 

based on a penal model. However, there have been problems associated with each 

type of ICE detention facility. ICE should continue to identify alternative housing 

options that reflect its civil detention authorities. Formulating and implementing 

civil detention standards must be at the core of immigration detention reforms, and 

this effort must be combined with the establishment of effective detention oversight. 

In its efforts to develop civil detention standards, ICE should study a range of potentially analogous systems, both in the United States and abroad. 

QUESTIONS FROM CHAIRWOMAN LORETTA SANCHEZ FOR BRITTNEY NYSTROM

Question 1a. In your testimony, you mention that one of the biggest frustrations 

for non-governmental organizations (NGOs) is the lack of collaboration with ICE 

field offices. 

Please elaborate on this frustration. 

Question 1b. If NGOs had the opportunity to work with field offices, what would 

that collaboration look like? 

Answer. ICE field offices vary widely in outreach to local NGOs and willingness 

to respond to concerns. Unlike the more formalized liaison or working group structures of communication that exist between ICE headquarters and NGOs in Washington, DC, collaboration with ICE field offices is varied and often dependent on the 

attitude or personality of the field office leadership. For example, ICE field offices 

do not uniformly engage in liaison meetings or establish channels of communication 

with local NGOs, and far too frequently do not respond to the communications made 

by local community-based groups. Some field offices foster robust relationships with 

NGOs, while others are less willing to engage in outreach. Despite National detention reforms undertaken by ICE leadership, NGOs that provide direct legal services 

and know your rights presentations to detainees have varying levels of access and 

collaboration with ICE field offices. Some of these service providers feel constrained 

to report poor detention conditions or detainee reports of ICE misconduct for fear 

of retaliation and the need to maintain cordial relations with ICE field offices in 

order to maintain access to detainees. 

A lack of transparency in ICE detention and deportation practices and procedures 

frustrates NGOs and undermines efforts to establish uniformity. Without public and 

standardized practices and policies, NGOs are unable to detect or report noncompliance. ICE field offices have historically resisted transparency and have been referred to as ‘‘fiefdoms’’ that operate outside the oversight of ICE headquarters staff. 

In addition to the vast variation in conditions across the network of facilities that 

ICE uses, there is a significant variation of release practices across field offices, including use of alternatives to detention programs, parole grant rates for arriving 

asylum seekers, timelines for conducting post-order custody reviews and subsequent 

release for indefinite detainees, and bond determinations. 

ICE headquarters should encourage field offices to work alongside local NGOs and 

should standardize best practices in community outreach and partnership. Collaboration with NGOs can include: Establishment of standing liaison meetings between 

leaders at each field office and the NGO community, regularized agreements that 

encourage and solidify access for NGOs to provide legal services to detainees, establishment of minimum response times to NGO concerns regarding detainees, and 

sharing of expected practices and policies with NGO partners. Perhaps most simply, 

ICE should issue guidance to field offices supporting collaboration with NGOs. This 

approach has proved beneficial to both USCIS, which issued guidance encouraging 

asylum offices to work with NGOs representing detainees at credible fear or reasonable fear interviews,1 and to EOIR, which underscored the benefit NGOs and pro 
73 

2Memorandum from David L. Neal to Immigration Judges, Court Administrators, Attorney 

Advisors and Judicial Law Clerks, and Immigration Court Staff, March 10, 2008, available at 

http://www.justice.gov/eoir/efoia/ocij/oppm08/08-01.pdf. 3 ICE statistics show that only 11 percent of individuals in detention had been alleged to have 

committed violent crimes, and that the majority of the population is characterized as low custody, or having a low propensity of violence, i.e., the majority of individuals designated as 

‘‘criminal aliens’’—which includes individuals who have been charged with traffic violations, 

would not pose any threat to public safety. Of the individuals designated as ‘‘criminal aliens,’’ 

the most common criminal charges were for offenses involving traffic violations, drugs, simple 

assault, and larceny. ‘‘Immigration Detention Overview and Recommendations,’’ ICE, Dr. Dora 

Schriro, Oct. 6, 2009, available at http://www.ice.gov/doclib/091005liceldetentionlreportfinal.pdf. 

bono attorneys provide to immigration courts and standardized facilitation of their 

legal services.2 Finally, collaboration between NGOs and field offices can include 

protocols for outreach to NGOs for situations concerning vulnerable detainees in 

need of release, legal, or medical assistance. 

Question 2a. A lot of attention has been given to who ICE detains and the risk 

they may pose to the community. At present, ICE uses criminal history to determine 

whether a detainee should be placed in low, moderate, or high custody. However, 

under this classification system, non-violent criminal aliens are frequently housed 

with violent criminals. 

How would you recommend ICE improve the current ICE classification system for 

detainees? 

Question 2b. How should vulnerable populations be classified? What would a facility for detainees in this group look like? 

Answer. During both the initial custody determination and any subsequent classification or risk assessment, the presence of a criminal record should not automatically trigger restrictions on liberty.3 It must not be overlooked that the purpose of 

ICE detention is to ensure compliance with future immigration proceedings. An individual who comes into ICE custody from the criminal justice system has already 

completed any imposed criminal sentence. ICE’s assessment tools should take into 

consideration a host of factors beyond whether an individual has a record of criminal convictions, such as the presence of medical or mental health factors, whether 

an individual is a primary caregiver, and the individual’s ties to the community. 

Where detention is found to be necessary, ICE should make housing classifications 

to ensure that individuals are placed in the least restrictive setting and are able 

to access medical and mental health care. This necessitates a medical classification 

contemporaneous with the housing classification. 

Where criminal records are associated with an individual apprehended by ICE, 

the records must be certified. Criminal records should also be further assessed for 

length of time elapsed since the conviction, evidence of rehabilitation since the conviction, the degree and severity of the conviction, and whether the conviction is solely a consequence of lack of immigration status. Arrests that did not result in convictions should not weigh into a custody determination or housing classification decision. Standardized and thorough evaluations of criminal records would help ensure 

that individuals are classified accordingly and would prevent excessive restrictions 

on liberty. 

Vulnerable populations are especially at risk and cannot safely or humanely be detained in facilities meant for use by the criminal justice system. Current detention 

facilities used by ICE are overly restrictive given ICE’s narrow, civil detention authority, and are traumatizing for all immigration detainees. All reasonable efforts 

should be undertaken by ICE to ensure that vulnerable populations are not detained 

or are released from detention. Congress should appropriate sufficient funds to establish National alternatives to detention, including community-based programs. If 

risk of flight is a concern, individuals who belong to a vulnerable population should 

be automatically considered for enrollment in a secure alternative to detention program with appropriate services to ensure appearance. If detention must be imposed, 

vulnerable populations should be housed in the least restrictive setting possible. If 

ICE persists on the detention of these populations, they require specialized, on-site 

medical and mental health care, generous telephone and e-mail communication opportunities, absence of jail-issued clothing, shackles, and other jail setting 

accoutrements, and enhanced freedom of movement both within and outside detention facilities. 
74 

QUESTIONS FROM CHAIRMAN BENNIE G. THOMPSON FOR BRITTNEY NYSTROM

Question 1a. There has been a six-fold increase in the number of immigration detention beds in the United States since 1994. This is a rapid increase in detention 

bed capacity in a relatively short period of time. 

To what extent has the rapid growth in detention space contributed to problems 

with the detention system? 

Question 1b. What can ICE do to address these problems, in both the short and 

long term? 

Answer. The explosion of ICE’s immigration detention system resulted in a sprawling, decentralized detention system that is overly reliant on both private contractors 

and existing jails and prisons. ICE’s rapidly expanded network of approximately 300 

detention facilities has created a challenge to properly oversee and manage conditions at each facility. Thus, day-to-day operations and conditions of detention at the 

majority of these facilities have been ceded to contractors, both from private industry and local government. Detention condition standards are not now mandatory for 

facilities that are operated through intergovernmental service agreements, which 

represent the bulk of facilities in the detention network, and none of the standards 

are legally enforceable because they are neither codified in statute nor promulgated 

into regulations. As a result, conditions vary widely across the patchwork of facilities pushed into service over the past few years by ICE to house the escalating number of detainees. These facilities are typically county jails that detain individuals for 

ICE in an identical fashion to the individuals they detain for the criminal justice 

system, sometimes mixing ICE detainees and the general criminal population in the 

same cells. Finally, ICE’s network of detention beds is strongly weighted towards 

the South, with Texas outpacing all other areas in numbers of ICE detainees. The 

unequal distribution of detention beds Nation-wide created skyrocketing numbers of 

transfers as detainees are shuffled to cheaper and more available detention beds. 

Correspondingly, detainees have become clustered in rural areas far from legal services, family support, and medical providers. 

ICE must make both short-term and long-term efforts to regain operational control 

of the facilities it employs and to enforce detention standards appropriate for civil 

immigration detention. In the short term, ICE must install on-site employees at 

each detention facility to regulate conditions of detention and create meaningful 

oversight. ICE Assistant Secretary John Morton has publicly committed to reclaiming oversight capability of facilities used to house immigration detainees. However, 

announcements that more than 50 Federal employees will be deployed to the more 

than 300 detention facilities ICE currently uses have not yet been fulfilled. Other 

short-term corrections would include implementation of simple improvements in 

conditions of detention that would emphasize the civil, non-punitive nature of immigration detention. Some improvements could be effectuated quickly, such as extended visitation hours, access to personal clothing rather than required jail uniforms, and greater freedom of movement within facilities. ICE has also taken steps 

to update and improve the Performance Based National Detention Standards that 

were slated for National implementation in January 2010. Implementation and enforcement of these standards offer a critical opportunity for ICE to set a new course 

for immigration detention. 

Contracts with detention facilities must be renegotiated in a manner that emphasizes ICE’s expectations for meeting the improved standards and establishes consequences for non-compliance. Additionally, unannounced and more frequent inspections against standards, enhanced grievance review procedures and the deployment 

of Federal employees to every facility ICE uses are required to ensure compliance 

with ICE’s enhanced detention standards. 

Longer-term corrections include a shift in the concept of immigration detention 

and an overhaul of detention facility design to reflect ICE’s civil detention authority. 

A truly civil detention system would be separate and distinct from the correctional 

facilities relied upon by ICE today. Detention standards appropriate to a civil detention system must be developed, implemented, monitored, and made enforceable 

through statute or regulation. Thus, ICE may need to locate or build detention facilities that match its detention authority and requirements. 

Question 2a. In your testimony, you cite a Washington Post investigative series 

from last year that found substandard medical care may have contributed to the 

deaths of at least 30 individuals in immigration custody. 

What are the biggest challenges facing the detainee medical care system? 

Question 2b. What can ICE do to address problems with this system, both over 

the long term and more immediately? 

Answer. An initial challenge to the provision of medical care to immigration detainees is that adequate screening is not conducted by a medical professional at the 
75 

4 ‘‘New Scrutiny as Immigrants Die in Custody’’, The New York Times, Nina Bernstein, June 

26, 2007, http://www.nytimes.com/2007/06/26/us/26detain.html?pagewanted=all. 5 ‘‘From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers’’, 

Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture, June 

2003, available at http://physiciansforhumanrights.org/library/documents/reports/reportperstoprison-2003.pdf. 6 ‘‘Detaining Care, Part One: Mental Hell’’, The Texas Tribune, Emily Ramshaw, Nov. 16, 

2009, available at http://www.texastribune.org/stories/2009/nov/16/psychiatrists-mentalhealth-care-absent-immigration-detention-centers/. 7http://www.dhs.gov/xoig/assets/mgmtrpts/OIGl10-23lDec09.pdf. 

point of apprehension or booking to identify medical or mental health concerns. As 

a result, individuals who are medically vulnerable are nonetheless placed into immigration detention. For example, Sandra Kenley was placed into immigration detention despite alerting DHS officials that she was scheduled for a hysterectomy and 

was hemorrhaging daily. She died only a few weeks after being placed by ICE in 

county jails in Virginia.4 Furthermore, many asylum seekers or survivors of torture 

linger behind bars pending adjudication of their immigration claims. For these individuals, detention is a re-traumatizing event documented as causing distress.5 Individuals who present at intake with medical or mental health concerns should be 

automatically considered for release, parole, or alternatives to detention. Additionally, there must be on-going medical evaluations of detainees to identify individuals 

who may have developed medical or mental health conditions while in custody. 

Additionally, there are a host of challenges ICE must overcome to provide sufficient 

medical care after individuals are detained. One chronic obstacle to effective delivery of medical care to detainees has been vacant or non-existent medical staff positions within detention facilities. In recent years, some of the largest detention facilities holding thousands of detainees have had no staff psychiatrists on site.6 The 

physical design of detention facilities used by ICE has also led to inappropriate care 

for sick detainees. Generally, many facilities used by ICE were built for short-term 

custody and are not equipped to meet the needs of detainees who may be kept there 

for months if not years. To illustrate, detainees with mental health needs have been 

inappropriately and dangerously confined to isolation units, or ‘‘the hole’’, due to a 

lack of designated medical facilities within the facility. A delegation of the InterAmerican Commission on Human Rights expressed distress after observing ‘‘the use 

of solitary confinement to ostensibly provide personal protection for vulnerable immigrant detainees, including homosexuals, transgender detainees, detainees with 

mental illnesses, and other minority populations.’’ The delegation also noted that 

‘‘the use of solitary confinement as a solution to safeguard threatened populations 

effectively punishes the victims’’ and urged the U.S. Government ‘‘to establish alternatives to protect vulnerable populations in detention and to provide the mentallyill with appropriate treatment in a proper environment.’’ Another problematic component of health care in immigration detention is the troubled Treatment Authorization Request or ‘‘TAR’’ process for obtaining medical care beyond what care is available within a detention facility. The DHS Office of Inspector General made several 

recommendations on ways to improve this process in a report issued in December 

2009.7

In addition to implementing the OIG’s recommendations on the TAR process, ICE 

is moving forward on immediate improvements to the existing Performance Based 

National Detention Standards. These enhancements can help address medical intakes, comprehensive medical evaluations, responses to detainee requests for medical care, and proper care and housing for detainees with medical and mental health 

issues. More long-term improvements to medical care for immigration detainees 

should include a transition to electronic medical records for all detainees and the 

development of a new construct of civil detention standards that are separate from 

correctional standards that have been used in the past. However, the best designed 

standards will not result in improved medical care if they are not implemented, supervised, and made enforceable. ICE must actively supervise conditions at each detention facility and there must be consequences for non-compliance. Facility staff 

and ICE staff at detention facilities require better training on recognizing and responding to medical and mental health conditions. 

Æ