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IMMIGRATION REMOVAL PROCEDURES IMPLEMENTED IN THE AFTERMATH OF THE SEPTEMBER 11, 2001 ATTACKS

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

BORDER SECURITY, AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

JUNE 30, 2005

Serial No. 109–54

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

JEFF FLAKE, Arizona 

BOB INGLIS, South Carolina 

DARRELL ISSA, California 

SHEILA JACKSON LEE, Texas 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

LINDA T. SA ́ NCHEZ, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

ART ARTHUR, Counsel 

LUKE BELLOCCHI, Full Committee Counsel 

CINDY BLACKSTON, Professional Staff 

NOLAN RAPPAPORT, Minority Counsel 

(III)

C O N T E N T S 

JUNE 30, 2005

OPENING STATEMENT 

Page 

The Honorable John N. Hostettler, a Representative in Congress from the 

State of Indiana, and Chairman, Subcommittee on Immigration, Border 

Security, and Claims ............................................................................................ 1

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

State of Michigan, and Ranking Member Committee on the Judiciary .......... 2

The Honorable Howard Berman, a Representative in Congress from the State 

of California .......................................................................................................... 3

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 5

The Honorable Martin T. Meehan, a Representative in Congress from the 

State of Massachusetts ........................................................................................ 7

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

of California .......................................................................................................... 7

The Honorable William D. Delahunt, a Representative in Congress from 

the State of Massachusetts ................................................................................. 8

The Honorable Daniel E. Lungren, a Representative in Congress from the 

State of California ................................................................................................ 8

WITNESSES 

Ms. Lily Swenson, Deputy Associate Attorney General, U.S. Department of 

Justice 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 13

Mr. Joseph Greene, Director of Training and Development, U.S. Immigration 

and Customs Enforcement, U.S. Department of Homeland Security 

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

Prepared Statement ............................................................................................. 27

Mr. Paul Rosenzweig, Senior Legal Research Fellow, Center for Legal and 

Judicial Studies, The Heritage Foundation 

Oral Testimony ..................................................................................................... 30

Prepared Statement ............................................................................................. 32

Mr. William West, retired Supervisory Special Agent, U.S. Department of 

Justice, Immigration and Naturalization Service, U.S. Department of 

Homeland Security, Immigration and Customs Enforcement 

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

Prepared Statement ............................................................................................. 42

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Ranking Member, Subcommittee 

on Immigration, Border Security, and Claims ................................................... 69

(1)

IMMIGRATION REMOVAL PROCEDURES IMPLEMENTED IN THE AFTERMATH OF THE 

SEPTEMBER 11, 2001 ATTACKS 

THURSDAY, JUNE 30, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON IMMIGRATION,

BORDER SECURITY, AND CLAIMS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:00 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable John 

Hostettler (Chair of the Subcommittee) presiding. 

Mr. HOSTETTLER. The Subcommittee will come to order. 

Today, the Subcommittee on Immigration, Border Security, and 

Claims will review a series of procedural changes that were implemented after the September 11th attacks to address security concerns. 

On September 11, 2001, terrorists hijacked and crashed four airplanes killing more than 2,900 people including all 246 people 

aboard the four airplanes. 

The FBI immediately thereafter initiated a massive investigation 

called ‘‘PENTTBOM’’ into this coordinated terrorist attack. This investigation focused on identifying the terrorists who hijacked the 

airplanes and anyone who aided their efforts, as well as on preventing follow-up attacks. In the wake of those attacks, and in advance of the invasion of Iraq, the Justice Department and INS implemented procedures that they deemed necessary to protect the 

American people from alien terrorists. Some of those procedures 

have been criticized because of their effects on the aliens involved. 

One procedure that has been so criticized is the closure of removal proceedings under the so-called ‘‘Creppy memo.’’ While investigating the September 11th attacks, the Government became 

aware of numerous aliens who were present in this country in violation of immigration laws. A few of those aliens, as well as some 

aliens already in Government custody, were identified as ‘‘special 

interest’’ cases on the basis of law enforcement or intelligence information that ‘‘they might have connections with, or possess information pertaining to, terrorist activity.’’ In a memo issued 10 days 

after the attacks, Chief Immigration Judge Michael Creppy issued 

guidance on the handling of special interest cases instructing immigration judges to close to the public hearings in such cases. That 

guidance, which was last followed in December 2002, has been suVerDate 0ct 09 2002 11:15 Nov 01, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\063005\22188.000 HJUD2 PsN: 22188
2

perseded by a regulation that allows Immigration Judges to issue 

protective orders for specific information on a case-by-case basis. 

Some have been critical of the procedure used for charging aliens 

with immigration violations. Nine days after the September 11th 

attacks, the INS amended its regulations to extend the time period 

in which an arrested alien must be notified of the charges against 

him from 24 to 48 hours or a longer period where there is, ‘‘an 

emergency or other extraordinary circumstance.’’ Critics have argued that this rule can result in an alien being detained indefinitely without charge. I note that since it was issued, the Department of Homeland Security has delineated what constitutes an 

emergency or other extraordinary circumstance. 

Other immigration procedures that have been the subjects of criticism are the detention policies for certain asylum seekers. In the 

Matter of D-J, the Attorney General held that a Haitian who arrived by sea could be detained while his asylum case was pending. 

The goal of this policy was to deter other Haitians from undertaking, en masse, dangerous sea journeys to the United States. 

Under Operation Liberty Shield, announced by DHS in March 

2003, asylum applicants from nations with a significant al Qaeda 

presence were detained until their claims could be adjudicated. 

DHS has reported that five aliens were detained under this program, four of them for less than 2 days, the fifth, subject to mandatory detention for a sexual assault conviction, for 5 months. 

Alien advocates have criticized an INS regulation implemented 

in October of 2001, that allows for the staying of Immigration 

Judge release decisions pending, INS and now ICE, appeal of those 

decisions. Critics have complained that this provision undermines 

the authority of the Immigration Court and denies aliens due process. The Administration contends that this procedure is necessary 

to ensure that dangerous aliens remain in custody until the Board 

of Immigration Appeals can review the case. The Administration 

argues that, in essence, this procedure maintains the status quo 

pending appeal just like a Federal Court’s stay of removal. 

We will consider each of these procedures at today’s hearing. It 

should be noted that none of the procedures relied on any of the 

provisions of the PATRIOT Act. 

At this time, I now turn to the Ranking Member of the Full Committee, the gentleman from Michigan, for purposes of an opening 

statement. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I appreciate that these hearings are being brought today to consider the measures that I have joined Mr. Berman and Mr. 

Delahunt in H.R. 1502. I think it is very important and appropriate 

that we do this. 

Now, we began, of course, by recognizing that there is a great 

confusion about what is in the PATRIOT Act and what is outside 

of the PATRIOT Act, and that is because many of the activities 

were unilateral on the part of the executive branch or the Attorney 

General. And therefore, it was not clear to many people—and they 

weren’t all citizens—many in the Congress. It just wasn’t clear. 

And so although we want everyone to become more informed, the 

PATRIOT Act as a term has become a code for any post-September 

3

11 policy that diminishes transparency or permits Government intrusion without adequate oversight. 

So for us to consider the suggestions made here in 1502 to strike 

an appropriate balance between security needs and civil liberties is 

absolutely appropriate. Due process protections and civil liberties 

for noncitizens in the United States clearly enhance the effectiveness of our Nation’s enforcement activity. I have been deeply involved in these proceedings since one of my constituents, a respected religious leader, was deported after being detained 18 

months based on accusations of ties to a charitable organization 

that was suspected of being linked to terrorism. Rabih Haddad was 

deported during the night. Neither his attorney, or his family were 

notified about it. And at his immigration hearing, neither his family nor his Congressman could gain access to the proceedings that 

were taking place at that time. So I am very happy that we are 

here today to discuss the provisions in 1502. Thank you, Mr. Chairman. 

Mr. HOSTETTLER. Chair now recognizes the gentleman from California for 5 minutes for purposes of an opening statement. 

Mr. BERMAN. Thank you very much, Mr. Chairman. 

And I do want to thank you for scheduling this hearing because 

I think it is an important one. You have put four policies on the 

table for discussion today, each of which was unilaterally adopted 

by the Administration in the aftermath of the terrorist attacks on 

September 11, 2001. Though we have heard from the Inspector 

General of the Department of Justice about his report on the results of one of these policies, we have not otherwise exercised oversight on these issues, and so I particularly appreciate the opportunity to do so today. 

In the days and weeks after the September 11, 2001 terrorist attacks, the Department of Justice and the FBI were facing unprecedented challenges. Judging their actions in hindsight, we must consider that they were acting in a time of crisis, the magnitude of 

which our Nation had not experienced in decades. I think we 

should judge carefully and then focus our efforts on ensuring that 

the mistakes in judgment that occurred during that period are not 

repeated. Oversight is our duty, but once we have done the oversight, we should fix problems where we have identified that. 

In that vein, Mr. Chairman, I have introduced a bill with Mr. 

Delahunt called the Civil Liberties Restoration Act. I appreciate 

you allowing his participation in this hearing. The first four sections of the Civil Liberties Restoration Act directly address the four 

policies that are the topic of our hearing today. The remaining 

eight sections of the bill cover issues from special registration and 

exercise of prosecutorial discretion, to data mining and production 

of business records. It is the place of Congress to make certain that 

our Government is given both adequate resources and the authority to protect the well-being of the American people, and clear legal 

standards and oversight that will protect their civil liberties. 

Where there is a balance to be had that does not diminish the ability to protect the country and at the same time conforms to our 

principles of open Government, then that balance should be struck. 

4

The issues we address today in this hearing, I think for those 

purposes, the balance can be found in the Civil Liberties Restoration Act. 

And the issue of closed immigration hearings, we will examine 

today. To take one example on those four issues, the result of the 

so-called Creppy memo that relayed the order of the Attorney General that all removal hearings for, ‘‘special interest,’’ detainees be 

closed to the public, the press and the family; considering the timing of the memo, just 10 days after the country had been attacked, 

I understand the concern that led to the policy. If the goal was to 

protect information sensitive to our national security, who could 

disagree with the goal of that policy? The disagreement is not with 

the goal of the policy; it is with the way it was executed. In my 

mind, this is not a question of whether or not portions of hearings 

that involve sensitive national security information ought to be 

closed. The question is who ought to have the authority to close 

them, and whether that authority is exercised across the board or 

on a case-by-case basis. There is a balance to be struck here. 

The same sort of across-the-board treatment is also the reason I 

take issue with the Administration’s decision to deny whole classes 

of people individual bond hearings. The desire for balance, Mr. 

Chairman, was the starting point from which each provision of the 

Civil Liberties Restoration Act grew. These aren’t partisan issues. 

I believe Mr. Rosenzweig will tell you that it is not everyday he is 

invited to testify by a Democrat. We appreciate him being here 

today. He is not alone in his judgment of our proposals. Two recent 

reports by the bipartisan Constitution Project came to the following 

conclusions relevant to our hearing today. There should be no blanket closure of deportation hearings. The Government should release 

the names of everyone it detains except under compelling circumstances as determined by a court. All persons in the United 

States are entitled to pretrial or prehearing release unless the Government demonstrates to the appropriate tribunal that the individual is likely to flee or poses a danger to the community. 

These conclusions are entirely consistent with our proposals, and 

they were endorsed by David Keene of the American Conservative 

Union and Paul Weyrich of the Free Congress Research and Education Foundation. In previous oversight hearings, I have asked 

both Attorney General Gonzales and Deputy Attorney General 

Comey to address the issues of blanket closure of immigration 

hearings and delayed notice of charges. The Attorney General responded by saying that, without question, mistakes were made. 

And those are in quotes. Deputy Attorney General Comey said he 

never understood the need for the former, that is the blanket closure of immigration hearings, and called the latter a screw up. In 

some cases, they noted the policies were no longer in practice. Others, they willingly admitted were mistakes in judgment. Whether 

or not the policies are currently operative, the Committee has jurisdiction and should exercise oversight to be certain that the mistakes acknowledged will not be repeated. The way to ensure that, 

Mr. Chairman, is for Congress to speak on the issue. 

Finally, Mr. Chairman, the Chair of the Full Committee recently 

expressed frustration and concern that the American public has become confused about what policies are part of the PATRIOT Act 

5

and which are not. The Chairman is right, the name PATRIOT Act 

has become code for all of the Administration’s immigration and 

law enforcement activities after September 11, 2001. I agree the 

public should be better informed and every effort should be made 

not to create further confusion. Even though most of the issues we 

will examine today are not part of the PATRIOT Act, they have a 

place in oversight of anti-terror powers. The fact that they were implemented without input from Congress furthers this case, and I 

appreciate the opportunity to examine them in this hearing. Thank 

you, Mr. Chairman. 

Mr. HOSTETTLER. The Chair recognizes the gentlelady from 

Texas, Ranking Member of the Subcommittee for 5 minutes, for 

purposes of an opening statement. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

This is the Judiciary Committee that I know and love because 

this is an important hearing, and I congratulate the Chairman and 

the Chairman of the Full Committee and the Ranking Member of 

the Full Committee and Mr. Berman and Mr. Delahunt. Their legislation, I am an original cosponsor of, and I congratulate them for 

moving forward on these issues. I saw the need for this, as well, 

as we began to look at comprehensive immigration reform and, in 

particular, the Save America Comprehensive Immigration bill, 

which we have authored, I have authored, deals with the need for 

an individual case-by-case bond determination in immigration 

cases. And it prohibits blanket denials of bond. These are some of 

the issues we are now facing along with some of the provisions in 

the PATRIOT Act. I have said many times that immigration does 

not equate to terrorism, but I understand it was difficult to maintain that distinction during the aftermath of the September 11 attacks. 

The purpose of this hearing is to take a calm look at some of the 

immigration removal procedures and detention policies that were 

implemented during that period. On September 21, 2001, Michael 

Creppy, the Chief Immigration Judge for the Executive Office for 

Immigration Review issued a memorandum to all immigration 

judges advising them that the Attorney General had implemented 

additional security procedures for certain cases. In these cases, the 

immigration judges were required to close the hearings to the public and to avoid the disclosure of any information about the cases 

to anyone outside the Immigration Court. Secret hearings are inconsistent with our most basic principles of fairness. Immigration 

removal proceedings determine whether individuals who spend 

months in detention will be separated from their families and then 

be removed from a country in which they may have lived for many, 

many years. Hearings should not be conducted behind closed doors 

unless there is a compelling reason for such secrecy. 

Many of us, including our former colleague, Dave Bonior worked 

extensively on the question of secret evidence; that secret evidence 

blinded, I believe, both prosecutor and, of course, defense. It took 

away from our system the purity of which we all are very proud 

of, and I think the basic premises of the Constitution, which in essence, indicates that there is minimally due process. Due process 

is not denial of justice. Due process is not denial of security. Due 

process is not reckless. 

6

This practice is addressed by Congressman Berman’s Civil Liberties Restoration Act of 2005, H.R. 1502, which I have joined, as 

I indicated, with Congressman Delahunt. Section 101 of the Civil 

Liberties Restoration Act will prohibit blanket closures of immigration hearings. It would permit closure only when the Government 

can demonstrate a compelling privacy or national security interest. 

Before September 11, 2001, the former Immigration and Naturalization Service was required to decide whether it was going to 

initiate deportation proceedings within 24 hours of arresting an 

alien. On September 20, 2001, this was changed to 48 hours or an 

additional reasonable period of time, on emergency or extraordinary circumstances. Section 102 of the Civil Liberties Restoration 

Act would require DHS to initiate proceedings within 48 hours of 

an alien’s arrest or detention. It would also require that any alien 

held for more than 48 hours be brought before an immigration 

judge within 72 hours of arrest or detention. This would not apply 

to aliens who are certified by the Attorney General to have engaged 

in espionage or a terrorist offense. 

Might I just add an anecdotal story that came to our attention 

recently out of Virginia. The facts are not exactly the same, but a 

Pakistani doctor, a physician, who happened to take a course in nuclear medicine was simply held by members of law enforcement, 

simply held. No information was given. No understanding of why 

he was held, ultimately released, and never did the law enforcement agencies indicate why or indicate that he had been vindicated. These are just slight of hands that I think we, our country, 

is above and not beneath. 

Although the Supreme Court has upheld mandatory detention 

when Congress has expressly required such detention for a discrete 

class of noncitizens, it has not authorized the executive branch to 

make sweeping, group-wide detention decisions. Since September 

11, 2001, the Department of Justice and the Department of Homeland Security have mandated the detention of certain classes of 

noncitizens without any possibility for release until the conclusion 

of proceedings against them. Section 202 would require DHS to 

provide all alien detainees with an individualized assessment as to 

whether the detainee poses a flight risk or a threat to public safety, 

except detainees in categories specifically designated by Congress 

as posing a special threat. 

On October 31, 2001, the Justice Department issued a rule that 

enables the Government to nullify a judge’s order to release an individual on bond after finding that he is neither a flight risk nor 

a danger to the community. The rule permits the Department to 

automatically stay an immigration judge’s decision to release an 

alien if the Government originally denied bond or set it at $10,000 

or more. No standards govern the granting of a stay in these cases, 

and it is simply at the discretion of the Government. 

We are without the Constitution in our hands if we remove the 

right of the judiciary to review or to overturn decisions. Section 203 

permits the Board of Immigration Appeals to stay the immigration 

judge’s decision to release the alien for a limited time period and 

only when the Government is likely to prevail in appealing that decision and there is a risk of irreparable harm in the absence of a 

stay. I hope that we can work together. 

7

As I started out, this is a Judiciary Committee that passed a bipartisan PATRIOT Act after 9/11. And I believe we have the opportunity in this legislation to recapture both that spirit and of course 

that challenge and responsibility on behalf of the American people. 

Mr. Chairman, I thank you and I hope and look forward that we 

will be able to do so. 

Mr. HOSTETTLER. I thank the gentlelady. The Chair now recognizes Mr. Meehan, the gentleman from Massachusetts, for 5 minutes for purposes of an opening statement. 

Mr. MEEHAN. I just want to thank the Chairman and the Ranking Member for providing us an opportunity for a hearing. I have 

been working with the Iranian-American Bar Association to catalogue and report the instances of what they have determined have 

been appalling treatment at many of these centers. 

In 2004, the Iranian-American Bar Association conducted a study 

on the implementation of the NSEERS program. And I have to say, 

the results were staggering. At call-in registration centers, detainees encountered unsanitary facilities and incurred questioning that 

was both humiliating and unnecessary, and many were forced to 

stay for days without sufficient food or bedding. My line of questioning is going to be on the NSEERS program and the status of 

that program. More than 13,000 individuals who voluntarily complied with the registration program were placed in immigration removal proceedings for immigration violations not related to terrorism. 

And last year, I asked Secretary Tom Ridge to produce a list of 

names and nationalities and a total number of NSEERS registrants 

with pending permanent residency applications that had been denied. In December of 2003, the Department of Homeland Security 

suspended the requirement that all individuals previously registered with the NSEERS reregister after 30 days and one year in 

the United States, but the NSEERS was not canceled and the callin registration program continued. This is a great opportunity for 

Members of this Committee to look at this and other issues. And 

I thank the Chairman and Ranking Member for calling this hearing. And I yield back the balance of my time. 

Mr. HOSTETTLER. I thank the gentleman. 

At this time, the Chair recognizes the gentlelady from California, 

Ms. Lofgren for purposes of an opening statement. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I will not use my entire 5 minutes. I would like to express my 

gratitude for this hearing. I think that this is an important subject, 

and I think it is important to note that, while the Nation is focused 

on terrorism relative to this subject, in fact, what has occurred, at 

least from what I have seen in the constituent cases coming from 

my office, it is everybody; it has nothing to do with terrorism. It 

is wives and mothers of American citizens from countries of suspicion if you even want to use that. It is a very broad approach 

that has completely changed the nature and tenor of the way we 

deal with families, the families of United States citizens. And I 

think that is very much worthy of our review. I do have a question 

that I hope the Government witnesses will address, and that is the 

provision in the PATRIOT Act that requires that an alien either be 

brought before a magistrate or released in 7 days and why the GovVerDate 0ct 09 2002 11:15 Nov 01, 2005 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\063005\22188.000 HJUD2 PsN: 22188
8

ernment feels that that provision can be ignored. I am interested 

in that, and I yield to Mr. Delahunt. 

Mr. HOSTETTLER. Does the gentlelady yield back her time? 

Ms. LOFGREN. I yield. 

Mr. HOSTETTLER. At this time, without objection, the gentleman 

from Massachusetts, Mr. Delahunt will be permitted to participate 

in today’s Subcommittee. And without objection, the gentleman is 

recognized for 5 minutes for purposes of an opening statement. 

Mr. DELAHUNT. Thank you, Mr. Chairman and I appreciate the 

accommodation. First, let me associate myself with the remarks of 

my cosponsor, Mr. Berman. I genuinely appreciate the opportunity 

to participate. And I want to thank you and through you the Chair 

of the Full Committee. I think this is a very important hearing. I 

just wanted to make one observation. I think in your opening statement, Mr. Chairman, you used the phrase an ‘‘advocate for aliens.’’ I don’t want that impression to be that Mr. Berman and myself are 

advocating for aliens. What we are doing is advocating for longheld and profound American values, such as transparency and fairness. 

And also, I think we consider ourselves as advocating for the appropriate role of the United States Congress in our Democratic system where consultation and oversight are keys to the functioning 

of that democracy. And I think that is what we are here advocating 

for. I am concerned, too, in the sense of the perception that is being 

created worldwide, given some of the anecdotes we have already 

heard relative to the issues, relative to these issues about specific 

cases. 

I just want to note that this past April, a GAO report stated, and 

I am quoting from this report, recent polling data show that antiAmericanism is spreading and deepening around the world. Such 

anti-American sentiments can increase foreign public support for 

terrorism directed against Americans, impact the cost and effectiveness of military operations, weaken the United States’ ability 

to align with other nations in pursuit of common policy objectives, 

and dampen foreign public’s enthusiasm for U.S. business services 

and products. While I would suggest that we ignore this to our 

peril, in fact, a recent poll that was released last week indicated 

that those people who we consider our closest ally in the war on 

terror, the British people, have a better opinion of China than they 

do of the United States. 

Again, the kind of anecdotes we have heard in opening statements here today I would suggest feed into that perception, and we 

have to deal with it. And I think the legislation that we have put 

forth goes in the direction of addressing the concerns and that perception. And with that, I yield back. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair now recognizes the gentleman from California for purposes of an opening statement. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

And I want to thank you for having this hearing. When we had 

Mr. Comey here a couple of weeks ago, I think Mr. Comey put in 

proper perspective many of the issues we are dealing with here 

today, and that is immediately after 9/11, there was an effort, a 

good faith effort made by the Congress and members of the AdminVerDate 0ct 09 2002 11:15 Nov 01, 2005 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\063005\22188.000 HJUD2 PsN: 22188
9

istration, particularly by the Justice Department, to respond to the 

threat that was out there. This was a new threat with challenging 

issues that we had not faced before. Decisions were made at that 

time to respond in the best good faith way that we possibly could 

both here in the Congress and by the Administration, and particularly at the Department of Justice. As Mr. Comey suggested, some 

of the processes and procedures that were used at that time are no 

longer being used, both because they are no longer necessary or 

upon reflection, we realized that we could do a better job. 

There was never, based on anything I could find, a suggestion 

that there was an intent not to protect the civil liberties of the people of this Nation. And I think we all agree with the idea that the 

terrorists will succeed if, on the one hand, they destroy us physically or if, on the other hand, they cause us to change who and 

what we are and cause us in any real way to tear up the Constitution. In my review of the facts at this point, I have not been able 

to see a case being made for that on the part of the Department 

of Justice, the Administration, or the Members of Congress or Congress collectively. 

At the same time, it is incumbent upon us as the oversight committee to ensure that that does not happen, and for us to look at 

what we did immediately thereafter and see after, upon reflection, 

we would proceed differently in the future, take lessons out of that 

and never forget that we are still involved in a war on terror. We 

are involved in a war with people who told us in 1998 that it was 

the obligation of everyone who was loyal to their cause to kill every 

American man, woman and child anywhere in the world, combatant and noncombatant, civilian and noncivilian. That is a threat we 

have never had before. It is an ongoing threat. And while I join 

Members on both sides of the aisle in working diligently to ensure 

that we not make mistakes that result in our inattention to the 

protection of civil liberties, we also understand that this is a balance that we are striking precisely because we are involved in a 

war. If there were no 9/11, the actions that we are looking at with 

respect to the Administration would not be at question, because 

those actions would have been taken. 

And so I appreciate the comments of my colleagues on both sides 

of the aisle, but I hope that we would recognize that what was done 

was in response to a perceived and real threat, number one. Number two, that there have been evolutions in the policies since that 

time. Number three, that it does none of us any good if we succumb 

to the temptation of hyping mistakes that were made and we not 

be overly broad in our observations, criticism or in fact, commendations. This is an ongoing process and something that requires our 

best and highest work, and I hope that we can work in that manner. I, for one, will say that I have found, thus far, the Justice Department to be forthcoming with answers to questions that I have 

raised and with respect, for instance, to certain parts of the PATRIOT Act; while they don’t always agree with my approach on 

things, have been open to suggestions of some tweaking of that act. 

And so I look forward to hearing from the witnesses. I look forward 

to hearing my colleagues and look forward to working, very importantly, on behalf of the American people to deal with this delicate 

issue of the balance between the threat that is out there and our 

10

preservation of our civil liberties as contained in our statutes and 

the Constitution. And I thank the Chairman for the time. 

Mr. HOSTETTLER. At this time, I will introduce members on our 

panel of witnesses. 

Lily Swenson currently serves as Deputy Associate Attorney 

General at the U.S. Department of Justice where she oversees immigration litigation and other issues. Prior to joining DOJ, Ms. 

Swenson was a partner in the Washington office of Mayer, Brown, 

Rowe & Maw. Her practice focused primarily on class action and 

appellate litigation. Ms. Swenson clerked for the Honorable Michael Kanne of the United States Court of Appeals for the Seventh 

Circuit. She graduated from the University of Wisconsin, Madison, 

and earned her J.D. From the University of Minnesota School of 

Law. 

Joseph Greene is the Director of the Office of Training and Development at Immigration and Customs Enforcement, or ICE. He 

has served in the Office of Investigations at ICE since its inception 

in March 2003. He was named the Deputy Assistant director for 

the Smuggling and Public Safety Unit and then served as Deputy 

Assistant Director for the Mission Support Division. Mr. Greene 

began his INS career as an immigration inspector at JFK airport 

in New York. He has a Master’s Degree in Philosophy from Fordham University in New York. 

Paul Rosenzweig is senior legal research fellow at the Center for 

Legal and Judicial Studies at the Heritage Foundation, and an adjunct professor of law at George Mason University School of Law. 

He also serves on the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee. He has been a trial attorney in the Environmental Crimes Section of the Department of 

Justice, investigative counsel to the House Committee on Transportation and Infrastructure, and senior litigation counsel in the Office 

of the Independent Counsel. Mr. Rosenzweig earned his BA from 

Haverford College, an M.S. In Chemical Oceanography, from the 

Scripps Institution of Oceanography and is a graduate of the University of Chicago Law School. 

Bill West retired as a supervisory special agent with ICE in May 

of 2003. In 1978, William West began service as a special agent 

with the investigations division of the U.S. Immigration and Naturalization Service. During his years at INS, he conducted a full 

range of immigration-related criminal investigations including 

fraud, smuggling, alien prostitution and criminal alien deportation 

cases. After joining the Miami District Office of the INS in 1991, 

Mr. West became chief of the Investigations Division’s National Security Section. He has also served as regional task force coordinator for INS Organized Crime Drug Enforcement Task Force programs, authored articles, and taught law enforcement courses. In 

addition, he has received the INS Commissioner’s Award, as well 

as an award from the Justice Department’s Criminal Division. 

Witnesses, if you would please stand in accordance with the requirements of the Committee and raise your right hand to take the 

oath. 

[Witnesses sworn.] 

Mr. HOSTETTLER. Let the record reflect that the witnesses answered in the affirmative. 

11

And Ms. Swenson, you may begin your testimony. 

TESTIMONY OF LILY SWENSON, DEPUTY ASSOCIATE 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Ms. SWENSON. Mr. Chairman and Members of the Subcommittee, 

thank you for the opportunity to testify at this important hearing. 

On behalf of the Department of Justice, I want to assure the Subcommittee that we take very seriously all of the issues you have 

raised. In this post-9/11 world, we must continue to protect our Nation’s security while not losing sight of our immigrant heritage or 

forsaking the rights of the individual. 

The issues you have raised touch upon these sometimes competing interests and the Department remains committed to striking 

the appropriate balance. I would like to discuss the closure of immigration hearings to the public. In the days following September 

11, the Attorney General, through a memorandum from Chief Immigration Judge Michael Creppy, instructed immigration judges to 

close administrative hearings in what turned out to be approximately 600 cases involving aliens who might be connected with or 

have information about terrorist activity in the United States. 

The Creppy memorandum was applied for approximately 15 

months and discontinued in December of 2002. Looking back at the 

Department’s decision to limit public access to these cases following 

9/11, we should be reminded of three things: First, the hearings 

closed under the Creppy memorandum were not secret. Although 

the executive branch could not disclose information in those cases 

to the public, nothing prevented the aliens or their counsel from 

doing so to friends, to family or, for that matter, to the press. As 

it turned out, they overwhelmingly didn’t. We can only presume 

that they chose not to for their own privacy or safety interests. 

Second, closure affected only public access to special interest 

cases. It did not affect an alien’s due process protections. Aliens 

were given a full and fair opportunity to litigate their claims and 

to be represented by counsel. In fact, about 75 percent of the 600-

odd aliens in special interest cases had their own lawyers. 

Third, as I said earlier, the Department has not closed any immigration proceeding pursuant to the Creppy memorandum for over 

2.5 years. Looking to the future, although the Department has not 

done so since the Creppy memorandum, it is imperative that it retain the ability to close a category of special interest cases to the 

public if circumstances warrant. Should we ever again face an attack of the type we did on September 11th, the Department may 

not be able to guard national security interests if it must adjudicate a large number of individual closure requests. Moreover, absent uniform closure instructions like in the Creppy memorandum, 

immigration judges may decide to disclose information in the individual cases before them which terrorist groups can then piece together into a bigger picture that can be used to thwart the Government’s efforts. During a time of national emergency, which is the 

only time the Department has resorted to closing immigration 

hearings, such scenarios would pose unacceptably high risks to national security. 

Next, let me address automatic stays. The automatic stay regulation was originally promulgated because, as the Attorney General 

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determined, a bond decision by an immigration judge that allows 

for immediate release is effectively final if, as the appeal would 

necessarily assert, the alien turns out to be a serious flight risk or 

a danger to the community. These concerns are not merely theoretical. In the last 5 years, more than 62,000 or 45 percent of aliens 

who were released from custody during the pendency of their removal proceedings failed to appear for the removal hearings. The 

emergency stay motion procedures that existed prior to the automatic stay regulation created a significant window of time wherein 

the alien may be released while a bond appeal was being submitted 

to and considered by the Board of Immigration Appeals in Falls 

Church, Virginia. The automatic stay regulation addresses the 

anomaly created by the old rules by preserving the status quo 

pending appeal, but only in a certain class of relatively serious 

cases and only for a reasonable duration. As such, although sparingly used, only a few hundred times out of over 100,000 appealable cases over 4 years, the automatic stay is an important public 

safeguard against the unwarranted release of aliens that otherwise 

would be determined by the Board to be a serious flight risk or a 

danger to the community. 

Finally, let me address briefly individualized bond determinations. When a removable alien is apprehended, an immigration officer decides whether he should be released on bond. If the alien 

wishes to contest the officer’s decision, he can obtain an individual 

hearing before an immigration judge. Although aliens have no right 

to bond at all and, by extension, they have no right to individualized bond hearings, the Attorney General has nonetheless to afford 

to most aliens individualized hearings before an immigration judge. 

A decision issued by the Attorney General in 2003 called the Matter of D-J directed immigration judges to consider in addition to 

dangerousness and flight risk, factors relating to national security 

and immigration policy in making individual bond determinations. 

The rule established in the Matter of D-J is sound as a matter of 

policy and of law, and it should not be legislatively undone. 

Mr. Chairman, thank you for the opportunity to testify before the 

Subcommittee. I look forward to answering any questions you may 

have. 

[The prepared statement of Ms. Swenson follows:]

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PREPARED STATEMENT OF LILY FU SWENSON


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Mr. HOSTETTLER. Thank you, Ms. Swenson. 

Mr. Greene. 

TESTIMONY OF JOSEPH GREENE, DIRECTOR OF TRAINING 

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

Mr. GREENE. Thank you, Chairman Hostettler and distinguished 

Members of the Subcommittee, and I thank you for this opportunity to discuss certain immigration enforcement procedures implemented after the September 11 attacks. 

As you know, after those attacks, our Government enacted a 

number of immigration enforcement policies in an effort to provide 

greater security to our Nation and our public. These efforts included investigating those responsible for the attack and trying to 

deter and disrupt the ability of others to carry out further attacks 

upon the people of this country. The Department of Homeland Security supports the current regulatory system that governs the closure of immigration hearings. In particular, DHS believes regulations granting immigration judges the authority to issue protective 

orders and to accept documents under seal strike an appropriate 

balance in individual cases. These regulations ensure that sensitive 

law enforcement information can be protected while allowing alien 

respondents and immigration judges to review Government evidence. 

Before 9/11, immigration officers had to determine whether to 

maintain custody or release an alien or whether to issue a notice 

to appear within 24 hours. On September 17, 2001, INS issued an 

interim rule amending that, providing immigration officers more 

time to make determinations regarding the processing and custody 

of aliens arrested on immigration charges. Under this interim rule, 

immigration officers now have 48 hours to make the determination 

whether to detain or release the alien and to determine whether 

to issue a notice of appearance charging an alien with grounds for 

removability. The rule also provides that under extraordinary circumstances, the immigration officer may have reasonable time beyond the 48-hour period to make a determination regarding custody. 

DHS has implemented procedures to ensure aliens in detention 

receive prompt notice of the charges against them. On March 30, 

2004, the then Under Secretary of Border Transportation and Security Asa Hutchinson issued guidance to DHS immigration enforcement officers on the requirements of those regulations. This memorandum also provided guidance regarding exceptions to the 48-hour 

rule, including what events constitute an emergency or other extraordinary circumstances that might justify a delay in charging an 

alien beyond the 48-hour period. In addition, ICE detention policies 

and guidelines provide further assurance that aliens arrested on 

immigration charges receive all of the protections under law to 

which they are entitled. 

In July, 2003, ICE issued a detention standard requiring immigration officials in the field to monitor detention conditions and address any detainee concerns that might arise. The U.S. Government has a policy in place requiring the detention of virtually all 

seagoing migrants found in or arriving in the United States. This 

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policy was adopted to deter aliens from illegally attempting to 

reach the United States by sea. Such attempts are often dangerous 

both to the aliens and to U.S. Law enforcement officials and divert 

limited enforcement resources from counterterrorism and homeland 

security responsibilities. The basis for this policy was affirmed in 

the decision in the Matter of D-J on April 17, 2003, in which the 

Attorney General vacated the Board of Immigration Appeals’ decision granting release on bond to a Haitian alien who attempted to 

enter the United States on a vessel carrying 216 undocumented 

aliens. In his decision, the Attorney General instructed the BIA 

and immigration judges that it was appropriate to consider national security interests in bond proceedings involving undocumented aliens present in the United States who are arrested and 

detained pending a decision on their removal. The underlying concern for releasing seagoing migrants, such as in the Matter of DJ, is that the release could encourage a surge of illegal mass migration by sea. Discouraging such unlawful and dangerous migration 

is consistent with sound immigration policy and the national security interests of this country. 

In 2001, the Department of Justice issued an interim regulation 

providing that in cases where the district director had determined 

that the alien should not be released or had a bond set of $10,000 

or more, any order of the immigration judge ordering the release 

shall be stayed upon ICE’s filing of the form with the executive office of immigration review. The interests served by allowing ICE to 

obtain an automatic stay in these cases is considerable. A custody 

decision that allows for immediate release is effectively final if the 

alien turns out to be a serious flight risk or a danger in the community. This automatic stay provides a safeguard to the public, 

briefly preserving the status quo while ICE seeks expedited appellate review of the immigration judge’s custody decision. 

In conclusion, procedural changes implemented in the wake of 

the 9/11 attacks were reasonable measures intended to provide 

greater security to our Nation and the public. DHS has reviewed 

these policies in consultation with appropriate entities, such as the 

Inspector General, the DHS Office of Civil Rights and Civil Liberties, and nongovernment organizations. The policies and procedures provide the appropriate balance between ensuring our Nation’s security and providing individual rights. 

Mr. Chairman and Members of the Subcommittee, thank you for 

the opportunity to testify today, and I look forward to your questions. 

[The prepared statement of Mr. Greene follows:]

PREPARED STATEMENT OF JOSEPH R. GREENE

Mr. Chairman and members of the Subcommittee, thank you for the opportunity 

to speak with you today about certain immigration enforcement procedures implemented in the aftermath of the September 11th attacks. 

After the devastating terrorist attacks upon the United States in September 11, 

2001 that killed 3,000 people, the Government enacted a number of immigration enforcement policies in an effort to provide greater security to our nation and the public. Those efforts included investigating those responsible for the horrific events of 

9/11, and trying to deter and disrupt the ability of others to carry out any additional 

attacks upon the people of this country. The immigration policies adopted after the 

September 11th attacks were directed towards these goals, which I am happy to discuss with you today. 

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IMMIGRATION HEARING CLOSURES

DHS supports the current regulatory scheme that governs the closure of immigration hearings. In particular, the Department of Homeland Security believes that the 

regulations issued by the Department of Justice on May 21, 2002, granting immigration judges the authority to issue protective orders and to accept documents 

under seal, strike an appropriate balance in individual cases, ensuring that sensitive law enforcement information can be protected while allowing alien respondents and immigration judges to review the evidence relied upon by the Government. 

Modeled after the Federal Rules of Civil Procedure, this tool allows DHS to introduce sensitive law enforcement information into immigration hearings. The procedures allow the alien to fully and fairly litigate the facts presented through this 

process. This is a valuable tool that DHS fully supports. 

48-HOUR RULE

Before September 11, 2001, regulations required that an immigration officer make 

a determination regarding whether to maintain custody or release an alien and 

whether a notice to appear would be issued within 24 hours of the alien’s arrest. 

That regulation did not set forth specific time requirements for serving the alien or 

the immigration court with a notice to appear. 

On September 17, 2001, the INS issued an interim rule amending 287.3(d) to provide immigration officers more time to make determinations regarding the processing and custody of aliens arrested on administrative immigration charges. Under 

that interim rule, immigration officers now have 48 hours to make a determination 

whether to detain or release an alien and to determine whether to issue a notice 

to appear charging the alien with removability. The interim rule also provides a 

narrow exception to the 48-hour requirement. The rule provides that under exigent 

circumstances, an immigration officer may have an additional reasonable time beyond the 48-hour time period to make a determination regarding custody and 

whether to issue a notice to appear. 

DHS has implemented procedures to ensure aliens in detention receive prompt notice of the charges against them. On March 30, 2004, Under Secretary of Border and 

Transportation Security (BTS), Asa Hutchinson, issued guidance to all DHS immigration enforcement officers on the requirements of the regulations. In cases that 

present no emergency or other extraordinary circumstances the following procedure 

will be followed:

1. All custody determinations and charging decisions must be made in 48 hours 

of an alien’s arrest.

2. The initial custody determination, and the date and time of that determination, will be documented on a Notice of Custody Determination (Form I-286).

3. The officer will also note on the custody determination form the charge or 

charges of removal reasonably believed to be applicable to the alien. The officer will also cite to the provisions of the Immigration and Nationality Act 

under which the charges are based.

4. A completed custody determination form will be served on the alien within 

48 hours of his or her arrest, and the time and date of service is to be noted 

on the form as well. If for any reason the form is not served within 48 hours, 

the officer is required to annotate the form with the reasons that prevented 

service of the custody determination within the 48 hours after the alien’s arrest.

5. A copy of the complete custody determination must be placed in the alien’s 

permanent alien registration file.

The March 30, 2004 memo provides guidance on 8 C.F.R. § 87.3(d)’s exception to 

the 48-hour rule when emergency or extraordinary circumstances are presented. 

The memo also provides guidance on what events constitute an emergency or other 

extraordinary circumstance under 8 C.F.R. 287.3(d) that might justify a delay in 

charging an alien beyond the 48 hour period. 

Any determination of the existence of emergency or extraordinary circumstances 

must be made by a Special Agent in Charge (SAC), a Border Patrol Chief, a Field 

Officer Director for Detention and Removal, or an equivalent position. The official 

who makes that decision is required to document that decision and forward a copy 

of that decision to Headquarters. 

ICE detention policies and guidelines provide further substantial additional protections to ensure that aliens arrested on administrative immigration charges receive all the protections under the law to which they are entitled. All immigration 

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detainees are provided with lists of local legal services providers, and are given appropriate telephone access with which to consult with and retain legal representation. DHS also has issued guidance to ensure that we adhere to our obligations 

under the Vienna Convention on Consular Relations with respect to the rights of 

detainees to contact their consular officials or representatives. Additionally, ICE 

issued a detention standard in July 2003 that requires that DHS immigration officials in the field visit persons who are detained in DHS facilities to monitor detention conditions and address any detainee concerns that may arise. 

OPERATION LIBERTY SHIELD

On March 17, 2003, coinciding with the U.S. deployment of our ground troops in 

the Iraqi combat zone, the U.S. Government launched Operation Liberty Shield to 

increase security and readiness in the United States. This nationwide operational 

plan was designed to protect U.S. citizens, infrastructure, and deter those who plan 

further terrorist attacks. Liberty Shield integrated selected national protective 

measures with the involvement of a wide range of Federal, State, local and private 

assets. The primary objectives of Operation Liberty shield included: (1) increased security at borders; (2) stronger transportation protection; (3) ongoing measures to disrupt threats against our nation; (4) greater protection for critical infrastructure and 

key assets; and (5) increased public health preparedness. 

Additionally, these increased security measures at our borders resulted in a shift 

in detention policy. During this brief one-month period, asylum applicants arriving 

at ports of entry from nations where al-Qaeda, al-Qaeda sympathizers, and other 

terrorist groups are known to operate, were subject to detention during the processing of their asylum claims. On April 17, 2003, Operation Liberty Shield concluded. At that time, all persons detained under this temporary rule, a limited number, had their cases reviewed on an individual, case-by-case basis. 

MATTER OF D-JAs explained in a Federal Register Notice issued on November 11, 2002, the U.S. 

Government has a policy in place requiring the detention of virtually all seagoing 

migrants found in or arriving in the United States. This policy was adopted to deter 

aliens from illegally attempting to reach the U.S. by sea. Such attempts are often 

dangerous for the aliens and U.S. law enforcement and divert limited law enforcement resources from counter-terrorism and homeland security responsibilities. 

The basis for that policy was affirmed by a decision on April 17, 2003, in which 

the Attorney General vacated the Board of Immigration Appeals’ (BIA’s) decision 

granting release on bond to a Haitian alien who attempted to enter the United 

States on a vessel carrying 216 undocumented aliens. In the resulting decision, Matter of D-J-, 23 I&N Dec. 572 (AG. 2003), the Attorney General instructed the BIA 

and Immigration Judges that it was appropriate to consider these national security 

interests in bond proceedings involving undocumented aliens present in the United 

States who are arrested and detained pending a decision on their removal. 

The decision stated that section 236(a) of the Immigration and Nationality Act 

(INA) and the accompanying regulations do not confer a right to an alien to be released on bond, and that the INA does not limit the discretionary factors that may 

be considered by the Attorney General (or the Secretary of Homeland Security) in 

determining whether to detain an alien during the pendency of removal proceedings. 

Based on this conclusion, the Attorney General decided it was within his discretion 

not to release this ‘‘undocumented seagoing migrant’’ due to national security concerns and immigration policy interests. 

An underlying concern with releasing seagoing migrants such as in Matter of DJ- is that the release could encourage a surge of illegal mass migration by sea or 

at land borders. The effect would be a strain on the Department’s border security 

resources. 

Attempts to reach the U.S. shores by seagoing migrants also imperil the lives of 

aliens, as many border crossings are attempted in unsafe conditions or are undertaken via smuggling rings, leaving aliens, particularly women and children, vulnerable to victimization. Discouraging such unlawful and dangerous migration is consistent with sound immigration policy and the national security interests of our 

country. 

STAY OF RELEASE ORDERS

In 2001, the Department of Justice issued an interim regulation that modified 8 

C.F.R. 3.19(i)(2). The current automatic stay regulations provide that in cases where 

the district director has determined that the alien should not be released, or has 

set bond of $10,000 or more, any order of the immigration judge ordering release 

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shall be stayed upon the INS’s (now ICE’s) filing of a Form EOIR-43 with the immigration court within one business day of the issuance of the immigration judge’s 

order, and the immigration judge’s order shall remain in abeyance pending decision 

of the appeal by the Board. The stay lapses if ICE fails to file a notice of appeal 

with the Board within ten business days of the issuance of the order of the immigration judge. In addition, if the Board orders the alien’s release, the Board’s order 

shall be automatically stayed for five business days, and if the case is certified to 

the Attorney General, the Board’s order shall continue to be stayed pending the decision of the Attorney General. 

The interests served by allowing ICE to obtain an automatic stay are considerable. A custody decision that allows for immediate release is effectively final if, as 

the ICE appeal would necessarily assert, the alien turns out to be a serious flight 

risk or a danger to the community. Historically, 30 percent of aliens released or paroled have failed to appear for subsequent immigration court hearings. Historically, 

this number becomes much greater, approximately 85%, once an alien is ordered removed. In such cases, the appeal provides little benefit to the agencies exerting efforts to effect removal, and less still to the community receiving the dangerous or 

absconding alien. The automatic stay provides a safeguard to the public, briefly preserving the status quo while ICE seeks expedited appellate review of the immigration judge’s custody decision. The BIA retains full authority to accept or reject ICE’s 

contentions on appeal. 

Additionally, the ICE Office of the Principal Legal Advisor had created internal 

safeguards to ensure that automatic stays are filed in appropriate cases. 

CONCLUSION

The procedural changes implemented in the wake of the 9/11 attacks that I have 

discussed today were reasonable measures intended to provide greater security to 

our nation and the public. DHS has reviewed these policies working with the appropriate entities such as the Inspector General, the DHS Office for Civil Rights and 

Civil Liberties, and consulting with Non-Governmental Organizations, and has developed policies and procedures to ensure that they provide the appropriate balance 

between ensuring our nation’s security and protecting individual rights. 

Thank you for the opportunity to testify today on this issue and I look forward 

to answering any questions you may have.

Mr. HOSTETTLER. Thank you, Mr. Greene. 

Mr. Rosenzweig. 

TESTIMONY OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION 

Mr. ROSENZWEIG. Mr. Chairman and Representative Jackson 

Lee, thank you very much for inviting me to testify. 

As Congressman Berman noted, it isn’t very often that a member 

of the Heritage Foundation is invited to come at the behest of a 

Democratic Member of this body, and I thought I would take the 

time to explain why. 

And in doing so, I would like to associate myself with a large portion of the remarks you made, Mr. Lungren. 

I don’t think it is to come here and criticize past practices that 

were taken in the heat of the post-9/11 era, but to see if we can 

learn from them and identify now in a term of relative calm rather 

than crisis what the optimal set of rules will be for the next situation. And I believe we can learn something from that history. 

I start by believing that, pretty much, the rules that we are discussing are not matters of constitutional requirement. Immigration 

law is within the plenary disposition of this body, and you can set 

the procedures that you want to. The question then is, what are 

the right procedures, and why do we care? For some, we care, because of the immigrants and the heartfelt problems that are affecting them that drive them to come to our shores. For others, it is 

31

the American values of transparency and due process that we hold 

dear and wish to see within our Government. For me, actually, it 

is a different thing all together. It is because I want to empower 

the Government to do as much as is humanly possible to combat 

both illegal immigration and terrorism. And I think the more 

transparency there is, the more comfortable we can be giving the 

enhanced authority to the immigration and customs enforcement 

officials to do their job. But that transparency, that oversight, that 

kind of notice and process is at the core of how we ensure that the 

powers that we give are not abused, are not misused. 

I yield to nobody in my admiration for members of the Department of Justice and Immigration. I am willing to stipulate from the 

get-go that mistakes that are made are made through legitimate 

concern for American security. But they are fallible human beings 

just as we all are. And so the right process is to put in place ideas 

about how we can monitor what is being done and correct them 

when there are errors. The proposals that are before you, it seems 

to me, address those in a fair and reasonable way. 

Section 101 of the CLRA calls for a presumption of openness. 

Doesn’t call for mandatory openness of all immigration proceedings, 

rather it calls for them to be open but subject to closure upon demonstration of national security, a risk to the asylum seeker—you 

could maybe think of some others to add—compelling governmental 

interests, like the safety of individuals or risk of flight or destruction of evidence. But it seems to me that the presumption of openness is the right place to start. And the only argument I have 

heard against that is that there is an administrative burden to 

being obliged to make a closure argument on a case-by-case basis. 

And I am willing to agree that that is an administrative burden 

that will at times prove difficult. And if we begin with the presumption of openness, there may even be some errors at the end. 

But at the core, we have to start from the idea that in order for 

Congress and the public to conduct their oversight of immigration 

proceedings, we should begin with the idea that there should be no 

universal or blanket closure that applies to a class of cases and 

work backwards from there. 

The same can be said, I think, of, for example, section 202 of the 

CLRA proposal which is the one that goes to whether or not there 

should be individualized bond determinations. Again, I am perfectly willing to agree that there may be nonindividualized concerns that will impact each individual’s determinations, concerns 

such as those that Mr. Greene advanced about governmental resources and the desire to deter, but that shouldn’t blind us to the 

need or the desire, I should say, to give each individual immigrant 

his own time in court, his own opportunity to be heard. Now his 

individual considerations may in the end be deemed pale next to 

some of these national security concerns, and if that is the decision 

of the immigration judge, so be it. But to adopt a rule that allows 

for a blanket set of determinations based on group characteristics, 

it seems to me contrary to our general adherence to ideas of individuated justice. 

I see my time has expired. And I would be happy to answer questions. With that, I thank you. 

[The prepared statement of Mr. Rosenzweig follows:]

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PREPARED STATEMENT OF PAUL ROSENZWEIG


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Mr. HOSTETTLER. I think the gentleman’s time has expired. And 

he will have questions asked of him. 

But the Chair recognizes Mr. West for 5 minutes. 

TESTIMONY OF WILLIAM WEST, RETIRED SUPERVISORY SPECIAL AGENT, U.S. DEPARTMENT OF JUSTICE, IMMIGRATION 

AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF 

HOMELAND SECURITY, IMMIGRATION AND CUSTOMS ENFORCEMENT 

Mr. WEST. Thank you. I would like to thank the Chairman and 

the Members and staff for the opportunity to present testimony 

today. 

As we know, the issue of immigration law enforcement and how 

it relates to counterterrorism matters has been a topic of intense 

studies since the 9/11 attacks. Indeed, the 9/11 commission issued 

a separate staff report on the topic and clearly found that, before 

9/11, the U.S. Government was significantly ill prepared from the 

perspective of utilizing its immigration law enforcement resources 

and counterterrorism matters. 

Fortunately, there have been some improvements since 9/11 with 

the creation of DHS, but more needs to be done. Several topics of 

discussion for this hearing relate to immigration removal proceedings, and I have discussed them at length in my written statement submitted for the record. Given the time considerations, I will 

touch on them briefly here and gladly answer any questions from 

the panel. 

Number one, on hearing closure, this issue relating to Government trial attorneys requesting that removal hearings against 

aliens be closed to the public, this practice is not new to the post9/11 era but was employed more often since then because the number of cases involving sensitive information being heard in immigration courts has increased substantially. 

It should be noted, such proceedings are still adversarial in nature, and the alien respondents are still entitled to their full due 

process rights under the law in those closed hearings, including 

having legal representation. 

Mr. WEST. Secondly, the 48-hour rule. This relates to the time 

period allowed when an alien is initially detained and when the 

alien is served notice of formal immigration removal charges. 

Before 9/11, the INS operated under a general 24-hour rule. 

After 9/11, the complexities of conducting additional intelligence 

agency background checks added to what is already the convoluted 

and time-consuming process of determining an alien’s status and 

physically processing a detained alien. The 48-hour time period is 

not unreasonable under the circumstances once those circumstances are fully understood. 

The blanket detention policy under Operation Liberty Shield, applies to asylum seekers entering the U.S. from known terrorist-producing countries. Given the historic widespread fraud and abuse in 

the U.S. political asylum system, combined with what is even today 

a relatively easy capability of deceiving that system, especially by 

people who come from the very countries where those terrorist organizations flourish and it is therefore often very difficult to verify 

42

those asylum claims from those claimants, the detention policy for 

those countries is sound. 

That said, the policy is still not really a blanket policy, and the 

DHS and the State Department are fully allowed, on a case-by-case 

basis, to authorize the release of those claimants when they are 

deemed releasable. 

Finally, the ICE trial attorney authority to stay immigration 

judge release orders. This authority existed well before 9/11, dating 

back to 1998, and was employed in certain high-profile criminal 

alien cases and very limited national security deportation cases before 9/11. After the 9/11 attacks, when the number of removal cases 

involving sensitive information and evidence not releasable in immigration court increased significantly, the use of that process also 

increased. 

Such action still requires trial attorneys to obtain headquarters 

general counsel level approval beforehand so there is senior level 

review of the case before that authority is actually invoked, and 

there is also appellate review conducted at the Board of Immigration Appeals. 

In summary, all these issues should remind us that removal or 

deportation proceedings are not criminal judicial proceedings but 

administrative proceedings conducted within the realm of the Executive Branch of the U.S. Government, as sanctioned by Congress 

and the Federal courts. They are different, and different for a reason. 

An alien respondent found guilty of a deportation violation, unlike a criminal defendant, is not punished by being sent to prison 

but is, instead, simply required to go home, much as a homeowner 

tells an unwelcome guest who has violated the privilege to stay in 

his house to leave. We should not forget the distinct differences or 

the reasons for those differences between those two systems. 

Thank you, and I will be glad to answer any questions. 

Mr. HOSTETTLER. Thank you, Mr. West. 

[The prepared statement of Mr. West follows:]

PREPARED STATEMENT OF WILLIAM D. WEST

I wish to thank the Chairman, the panel members and the staff of the Subcommittee for the invitation to appear today and the opportunity to offer this testimony. As the Nation has moved onward from the terrorist attacks of September 11, 

2001, the significant nexus between our national security and issues related to the 

enforcement of our immigration and nationality laws has become increasingly apparent. 

The National Commission on Terrorist Attacks Upon the United States, the 9/11 

Commission, devoted considerable research to the topic of immigration issues connected to the 9/11 attacks. In fact, there was a separate staff report titled 9/11 and 

Terrorist Travel detailing the background and history of those immigration issues. 

As that report clearly indicated, the US Government was ill prepared for dealing 

with national security threats from an immigration enforcement perspective before 

the 9/11 attacks. 

A handful of us who were in the immigration law enforcement profession during 

that period and who also happened to be among the very few involved in counterterrorism efforts knew very well how ill prepared we really were. Even fewer of us, 

including me, tried to sound the alarm years before; but those efforts always fell 

on deaf ears. Those in senior management positions of the Immigration and Naturalization Service (INS) and the Department of Justice (DOJ) at the time who could 

have implemented meaningful changes in that area simply had no understanding 

of the issues or genuinely believed immigration law enforcement had no significant 

role to play in counter-terrorism and other national security matters, notwithstanding the fact that specific immigration and nationality laws dealt directly with 

43

such issues and foreign nationals (aliens), who violated a variety of other immigration laws, were often the primary suspects in such cases. 

Even the first attack against the World Trade Center in 1993 and the related plot 

to destroy New York tunnels, a Federal building and other landmarks, all of which 

involved conspirators who were aliens that also violated US immigration and nationality law, failed to awaken the senior levels of the US Government to the realization that immigration law enforcement should have been an integral part of the 

country’s counter-terrorism efforts. Those efforts only evolved very slowly and at the 

local field office level, with a slight and begrudging Headquarters level acknowledgement by the late 1990s. It really was much too little much too late by 9/11. 

The situation did change after the 9/11 attacks, at least from the immediate perspective of the INS making manpower available to the FBI and other agencies to 

assist in counter-terrorism investigations in the months following the attacks. Ironically, the INS found itself being limited in being able to assign Special Agents to 

work such matters because many of its Special Agents did not have the requisite 

security clearances. Unbelievably, INS often did not require some of its Special 

Agents to have any security clearance. 

With the creation of the Department of Homeland Security (DHS), and the abolition of the INS and the formation of the Bureau of Immigration and Customs Enforcement (ICE) as the interior immigration enforcement/investigative arm of DHS, 

the assignment of ICE agents to work counter-terrorism cases became part of the 

new homeland security mandate within DHS. Those efforts were, and are, limited 

by the other investigative missions of ICE (and there are many) and the number 

of Special Agents within the agency (approximately 5500). 

Within ICE, only about 2000 Special Agents were ‘‘legacy’’ INS Special Agents 

who had the full background and training in immigration and nationality law and 

experience conducting investigations therein. While ICE has supposedly conducted 

cross-training for all its agents (legacy Customs and INS), that cross-training appears to have consisted of at most two weeks of in-service training, often conducted 

in field offices, and sometimes it amounted to less. The rest of the cross-training 

was essentially on the job. 

After the 9/11 attacks, the Government implemented several changes within certain immigration benefit and removal proceedings. Those changes are the primary 

topic of this hearing and I would like to discuss each below. Please note that I offer 

this testimony from the perspective of twenty-nine years of Federal law enforcement 

experience, twenty-five of which directly investigating and enforcing US Immigration and Nationality laws as a Special Agent and Supervisory Special Agent with 

the Investigations Division of the INS and ultimately, before my retirement the end 

of April 2003, with ICE under DHS. From the early 1990s, I became involved in 

counter-terrorism and other national security cases, and eventually became the 

Chief of a unique and specific National Security Section within the INS Investigations Division in south Florida devoted to such cases. I have direct, real world experience investigating foreign nationals who were involved in terrorism, espionage, 

human rights persecution and modern-day war crimes and other national security 

threats to the United States, targeting those suspects for immigration and nationality law violations within a multi-agency task force arena. This is not academic, 

think-tank theoretical experience but in-the-field, on-the-street working experience 

over many years and I hope that provides the panel with a special perspective on 

these matters. 

Hearing Closure: This process allows the Government to close removal (deportation) hearings before an Immigration Judge (the Immigration Court) to the public 

upon a motion that having the hearing remain open/public would potentially jeopardize national security or other ongoing sensitive investigative issues. 

Shortly after the 9/11 attacks, FBI and INS agents nationwide were flooded with 

leads related to that investigation, as well as off-shoot investigations involving other 

potential terror threats. As those leads were processed, and it was fully understood 

that no potential lead or suspect that might in any way be linked to the attacks 

or another such threat could be overlooked, the vast majority of the subjects of those 

leads were identified as aliens and many of those aliens were determined to be in 

violation of some provision of the Immigration and Nationality Act. 

Those early case leads, wherein the subjects were quickly determined to be illegal 

aliens, resulted in the alien subjects being arrested and detained on entirely legitimate immigration law violations. Those were violations, however, that under normal 

circumstances might have resulted in the alien being released on their own recognizance or on a small bond. In the weeks and months following 9/11, in following 

up leads related to the 9/11 investigation, those were anything but ‘‘normal’’ circumstances. 

44

The Government was faced with the dilemma of aggressively investigating these 

leads, identifying potential suspects during the process of investigating those leads, 

and then having a viable legal charge against those suspects that allowed for their 

arrest and detention. How to process the follow up legal proceedings without jeopardizing the larger and potentially more important counter-terrorism lead information while still maintaining legal control and custody over the suspect became the 

issue. Hearing closure was the answer. 

It should be noted that closing the hearing still allowed the detained alien his/

her adversarial due process rights in Immigration Court. The alien was still allowed 

legal representation. The hearing itself was simply not open to the public. The use 

of Immigration Court protective orders was implemented to facilitate the non-release of hearing information outside the courtroom in such cases. 

As the Government has expanded its counter-terrorism investigative efforts beyond the 9/11 attacks over the past several years, with the augmentation of assigned ICE agents and Title-8 authorization to FBI agents (the FBI received immigration enforcement authority just before the creation of DHS in 2003), cases with 

the same scenario continued to present themselves. 

The concept is essentially a blend of ‘‘quasi-FISA’’ with Immigration Court proceedings, ruling in favor of not publicly releasing sensitive information about a case 

generally in order to protect an ongoing investigation. The need to continue to have 

this flexibility is evident by the fact that such cases continue to be developed within 

the multi-agency counter-terrorism task force approach. It should be reiterated, the 

adversarial nature and legal representation status for the alien respondent is not 

changed in these closed proceedings; it is only that such proceedings are closed to 

the public. 

48 Hour Notification Rule: Before the 9/11 attacks, there existed a semi-formal 

but generally adhered-to ‘‘24 hour’’ rule wherein an alien detained in deportation 

matters was served with a charging document . . . the old Order to Show Cause 

which was later replaced by the Notice to Appear which is currently in use. Little 

understood by the general public, nor even by the law enforcement community outside those within what was INS and now ICE, is the fact that physically processing 

an alien arrested on removal charges, even something as ‘‘simple’’ as overstaying a 

nonimmigrant visitor status, can quite literally be more time consuming and papercomplex than the processing for many felony criminal arrests. 

How can that be? The issue of actually determining if an alien is in violation of 

the Immigration and Nationality Act is often not clear, easy nor fast. It is a legal 

requirement for all aliens within the United States to carry with them at all times 

evidence of their alien registration, assuming they have such evidence, and if they 

do not it is technically a misdemeanor criminal offense under 8 USC 1304(e). Needless to say, violation of this provision of law is rampant, and prosecution for this 

is extremely rare. However, once an alien is determined to be an alien by an ICE 

agent, the alien’s status must then be determined and it is incumbent on the alien 

to prove he/she is lawfully within the United States (8 USC 1361). 

If the alien does not possess any registration documents, as required by Federal 

law, at the time of the encounter, the alien may be detained until their status is 

determined. Even if the alien presents a document purporting to be evidence of alien 

registration, with a few short questions being improperly answered about how the 

status was obtained, and if the document appears altered, (there is an abundance 

of fraudulent immigration documents ‘‘out there’’) it is entirely likely the investigating agents will pursue further inquiry. 

That further inquiry means conducting additional in-depth questioning, either in 

the field or in the immigration office and conducting further record checks, either 

via radio or cell phone from the field or in the office. Those record checks are conducted on immigration computer systems that are notoriously inaccurate, lacking 

updated information and contain many subsystems that do not interface with each 

other, thereby requiring multiple redundant checks. Frequently, a physical review 

and analysis of a hard copy paper case file, or the scanned equivalent, is necessary 

for a final status determination, a case file that often is located in another field office or stored in a central records repository. And all this is just the preliminary 

workup to determine if an alien may or may not be prima facie lawfully or unlawfully in the US. 

That preliminary status process alone can often take hours, even though determining a person is an alien usually is done in a matter of moments. Surely, there 

are times when an unlawful alien who has surreptitiously crossed the border and 

has no alien registration documents immediately admits to all that when encountered and is quickly taken into custody. Even in those cases, the full battery of 

record checks through the convoluted computer systems must still be conducted, to 

include the standard criminal record checks via the NCIC system. 

45

Once an alien is determined to be in violation of the law and subject to a removal 

charge, there is a formal processing procedure that must take place before a Notice 

to Appear, the charging document is issued. In fact, there are usually somewhere 

on the order of a dozen different forms that must be completed and executed in even 

the simplest removal cases. The more complex the case, the more forms there are 

to complete. The process of actually determining a violation and then processing a 

charging file routinely can take many hours, sometimes the better part of a work 

day, depending on the complexity of the case, for one alien. 

Then there is the matter of when and where the alien may have been initially 

arrested and detained. If it is late in the day, and the NTA processing might not 

be expected to be completed until the following day, the alien might be temporarily 

detained at an immigration detention center or local jail overnight, to be retrieved 

the next day for completion of processing. This often occurs because an official who 

is lawfully authorized to actually review and sign a Notice to Appear may not be 

available until the next day. 

These were all standard reasons why, pre-9/11, the ‘‘24 hour’’ rule was in effect 

and generally worked. After 9/11, things very quickly changed when INS agents, 

working closely with the FBI, began arresting and detaining aliens identified in suspected terrorism related inquiries. In addition to the usual standard convoluted obstacles INS (and later ICE) agents faced in these matters, the very real potential 

issues of national security were thrown into the mix. 

Very quickly, very many of the aliens encountered in these law enforcement endeavors also had to be queried through a battery of national security databases. 

Those efforts took an additional period of time, and the gravity of the potential results was even more important. That is what led to the creation of the ‘‘48 hour’’ rule. It was simply a recognition that in certain enforcement situations, field investigative personnel needed additional time to not only fully determine who they were 

dealing with but, under an institutional structure that, even with the transition to 

DHS where some improvements have been made, arresting, detaining and processing an alien in removal proceedings can still be a time-consuming and labor-intensive affair. 

To remove or shorten this rule without also creating a significantly improved and 

streamlined infrastructure system under which field immigration law enforcement 

personnel can work would be asking those law enforcement officers, in those limited 

circumstances where the rule is required, to do a nearly impossible task. 

Blanket detention under Operation Liberty Shield: In March 2003, the White 

House announced Operation Liberty Shield, which essentially was a series of security and law enforcement enhancements by the Federal Government in its ongoing 

international counter-terrorism efforts. Among those enhancements was a change in 

detention policies relative to asylum seekers from certain specified countries, namely, countries ‘‘where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are 

known to have operated.’’ The policy required those asylum seekers to be detained 

for the duration of their processing period, so the Government could ‘‘determine the 

validity of their claim.’’ The announcement specifically cited that DHS and the State 

Department would coordinate exceptions to the detention policy. 

This ‘‘blanket’’ detention policy for asylum seekers has come under criticism from 

a number of sources. The general premise for such criticism is that asylum seekers 

are the very people least deserving of detention, they are people fleeing repressive 

regimes and conditions and are seeking freedom and detaining them while their 

asylum cases are heard is draconian. 

On the surface, such criticism might seem to have certain merit. However, such 

criticism simply appeals to surface emotions and ignores the historic reality of widespread abuse of the liberal political asylum system within the United States. Interestingly, that widespread abuse really began with what could also be described as 

the beginning of America’s conflict with radical Islam, the seizure of the US Embassy in Tehran in 1979 by radical Iranian ‘‘students’’ supported by the Iranian government and the taking of American hostages who were held in captivity in Tehran 

for more than a year. 

One of the domestic responses by the Carter Administration to that event was a 

so-called ‘‘crackdown’’ on illegal Iranian students and other nonimmigrants in the 

United States. Within INS, that operation was dubbed the ‘‘067 Project.’’ To no one’s 

surprise, INS found it had no idea how many Iranian students were in the US. Over 

about a year, INS agents were tasked with identifying, locating and determining the 

immigration status of as many Iranian students and other nonimmigrants as possible. The project identified somewhere on the order of over 30,000 such Iranian students and other nonimmigrants, a very large number of whom were determined to 

have violated their immigration status in some way or another. Those violators were 

arrested and charged. 

46

Of those Iranian students who were placed under deportation proceedings under 

the 067 Project, most were intelligent, savvy young men of some means. Many also 

turned out to be angry young radical Islamic fanatics, although Federal law enforcement wasn’t quite sure what that meant at the time. What did happen, however, 

is most were released on bond and hired immigration attorneys. Most wanted to remain in the United States. A few began filing for political asylum and that opened 

the asylum floodgates . . . the few became very many and the system became overwhelmed. 

From the 067 Project, of the thousands of illegal Iranians who were placed under 

deportation proceedings, only a handful were actually deported and a very large 

number were granted political asylum. How many of those asylum requests were 

legitimate is anyone’s guess, since the process and system was, as I noted, basically 

overwhelmed by the numbers at the time and the ability to investigate the claims 

of such Iranians was virtually impossible, so they were essentially taken at face 

value. This set the sad asylum system ‘‘standard’’ for years to come, until the system saw some degree of reform in the 1990s. Fraud and abuse within the system 

have been rampant for years, and were the impetus for the eventual reforms that 

were put into place but which have only somewhat improved matters. 

Even with some modicum of reform, the asylum process continues to be abused. 

While State Department country condition reports, Intelligence Community assessments and NGO reports provide Asylum Officers and Immigration Judges a better 

perspective on potential case backgrounds in the generic sense, very often, specific 

issues surrounding individual cases come down to the credibility of the alien claimants themselves. This means an Asylum Officer or an Immigration Judge must decide if the alien claimant is telling the truth or lying. It often really is that simple, 

and that easy for a claimant to lie and beat the system. They only need a believable 

story that cannot otherwise be readily disproven, and sound credible to the official 

to whom they are telling the story. 

Within that context, within the larger framework of the ongoing war on terror, 

wherein alien asylum claimants from known terror producing countries appear and 

the training doctrine of al-Qaeda and other terrorist organizations teach their 

operatives to seek asylum in the West and, especially in those cases where the issue 

truly boils down to the credibility alone of the claimant, combined with a system 

that has a history of widespread fraud and abuse on the part of claimants, maintaining the detention policy under Operation Liberty Shield makes perfect sense. 

Finally, it should be pointed out the policy fully allows for exceptions to the detention policy. DHS and the State Department are allowed, on a case-by-case basis, to 

consider and release asylum claimants when such release is deemed appropriate. 

For this reason, the policy really is not a ‘‘blanket’’ detention policy after all, but 

simply one of reasoned posture in favor of security. 

Trial Attorney authority to stay Immigration Judge release orders: In certain removal cases, wherein an Immigration Judge orders the release of an alien respondent and the Government Trial Attorney (now DHS/ICE Counsel) disagrees with the 

condition of release, the Government Trial Attorney can invoke a legal stay of the 

Immigration Judge release order while the Government appeals the order to the 

Board of Immigration Appeals. Since 9/11, the invocation of this process has increased, primarily in detention cases involving aliens suspected of linkage to terrorism or other national security threat matters. 

It should be noted this authority by Government Trial Attorneys is not something 

new under the USA Patriot Act or some new policy implemented after the 9/11 attacks. The authority existed well before 9/11, since the 1990s, and has been utilized 

selectively in serious criminal alien and a handful of national security deportation 

cases. The process has not come into serious public scrutiny, however, since after 

the 9/11 attacks when it’s usage became more widespread in removal proceedings. 

This is simply a matter of more such cases related to potential security threat issues 

being presented in the Immigration Courts. 

An ICE Trial Attorney must seek and receive ICE Headquarters General Counsel 

Office approval before invoking the stay authority; therefore, there is a senior level 

legal review of the case issues before the authority is implemented in any given 

case. Further, the invocation is generally employed when the Government possesses 

additional background information against the alien respondent which it prefers not 

to release in the Immigration Court proceedings, but believes the evidence already 

presented would suffice upon appeal to the BIA and the alien’s release would be detrimental to the security of the community or pose a notable flight risk. 

An important issue to be remembered in this is that while the Immigration 

Judges and even the Board of Immigration Appeals are quasi-independent semi-judicial entities, they are, in fact, officials of the United States Department of Justice 

who ultimately report to the Attorney General. As such, they are ultimately ExecuVerDate 0ct 09 2002 11:15 Nov 01, 2005 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\063005\22188.000 HJUD2 PsN: 22188
47

tive Branch officials of the Federal Government. When an ICE Trial Attorney invokes the stay rule, he/she is essentially telling another Federal Executive Branch 

official that an administrative directive issued by that official must be temporarily 

placed on hold while other Executive Branch officials review the decision and issue 

another administrative ruling. It should be remembered that Immigration Court 

proceedings, removal (deportation) proceedings, are not criminal judicial proceedings 

. . . they are administrative proceedings held within the realm of the Executive 

Branch of the Federal Government. 

Which leads me to my summation. When it comes to immigration law enforcement, at least the part that deals with removal (deportation) matters, it appears 

that far too many people equate such matters with criminal judicial proceedings. 

This may be due to a genuine lack of understanding on the part of many; but is 

probably a deliberate misrepresentation of reality on the part of at least some, who 

do so for other agendas. 

While there are parallels: aliens can be arrested and detained, they are charged, 

they go to court, they can be represented by lawyers, they can be released on bond 

in certain circumstances, they are entitled to appeals (actually, more appeals than 

criminal suspects have in the Federal court system); the process and the underlying 

premise behind it all are notably different. 

The process is all administrative. The rules of evidence are different. While there 

are similarities, the rules of evidence favor the Government, the prosecution, and 

the Federal Courts up to the Supreme Court have more often than not upheld that 

posture for many years. And, why is that? Because the entire premise of removal/

deportation is different from the criminal justice system. 

If an offender is charged with a crime (and, there are actually many immigration 

crimes, but we are not discussing those here), the prosecution has the burden to 

prove the defendant’s guilt beyond a reasonable doubt and if it does, the violator 

might go to jail . . . may well lose his/her liberty; they are punished. In the immigration removal system, the administrative process, the burden, once the Government proves a person is an alien, falls to the alien to prove they are legally within 

the US and entitled to be here (8 USC 1361). In reality, the Government almost 

always has evidence the alien also violated the immigration law, so the real litigation usually ends up over issues related to potential relief from deportation (like political asylum). And it is those issues that usually go to appeal . . . and take such 

long periods of time for appeal, and why even seemingly simple deportation cases 

can take literally years before they are finalized. That is probably something the 

immigration defense bar does not want to have widely known. 

But, the end result in such proceedings, if the alien respondent (not defendant) 

is found guilty in a deportation case, is not going to prison, but simply they are required to go home . . . to return from where they came. This is not considered a 

punishment, it is merely considered a revocation of the privilege of being allowed 

to enter or remain in the United States. And that really is what has been lost in 

much of this. 

Foreign nationals, aliens, do not have any right to enter and remain in the United 

States, though I suspect many would argue they do. Unless Congress changes the 

law and grants such rights, aliens still only have a legal privilege to enter and remain here. That really is what immigration law enforcement, on the deportation 

side at least, really is all about. It is very much like a homeowner having the absolute right to deny entry into his home of someone outside asking to come in. And, 

the homeowner need not have any reason nor give any explanation why he chooses 

to deny entry to the stranger. And if the homeowner chooses to allow a guest to 

enter, the homeowner has the absolute right to tell the guest to leave at anytime 

for any reason. 

That may be a simple analogy, but the US Government represents the homeowner 

for the United States of America. While we may wish to continue allowing certain 

invited guests into our home, we know there are some dangerous intruders out 

there who mean to do us great harm. Employing reasonable law enforcement techniques to keep those dangerous intruders out, and to identify and remove those already here, even if some of those techniques might seem somewhat at odds with our 

traditional criminal justice procedures because it must be remembered they are not 

part of that system, is a smart common sense approach to helping keep our Nation 

safe.

Mr. HOSTETTLER. At this time, the panel will now turn to questions. 

48

Ms. Swenson, first to you. What difficulties would an immigration judge face in holding an open hearing to determine whether 

to close a hearing to the public? 

Ms. SWENSON. There are a number of difficulties that an immigration judge could face, especially in the context of a case involving very sensitive secrets, for example, you know, a child abuse 

case or a national security case. Sometimes the identity of the alien 

himself is something that is a secret that is sensitive in itself, and 

it would be difficult in a situation where there is not a protective 

order or a closure order in place to be able to keep that kind of information secret while a protective order or, you know, a closure 

order were being adjudicated. So the difficulty could possibly be 

that, in order to adjudicate the closure itself, that sensitive information could be disclosed. There are procedures to prevent that, 

but that is a risk. 

Mr. HOSTETTLER. Thank you. 

Let me ask you some questions about the so-called Creppy memo 

that authorized the closure of removal cases. You have already 

mentioned in your testimony that individuals were not precluded 

from speaking to counsel or their family members or, ultimately, 

the media. But did aliens subject to the memo have an opportunity 

to introduce evidence and call witnesses in support of their applications for relief from removal? 

Ms. SWENSON. There has been quite a bit of confusion surrounding this issue. As I mentioned in my opening statement, the 

Creppy memorandum didn’t touch in any way the due process procedures that are available to an alien. Aliens in these special interest cases and these cases closed under the Creppy memorandum 

were given full and fair opportunity to litigate their claims, to 

present evidence, to present witnesses, to cross-examine the Government’s witnesses and to be represented by counsel. 

As I mentioned earlier, indeed an unusually high percentage of 

the illegal aliens who were in these special interest cases were actually represented by counsel. 

Mr. HOSTETTLER. Thank you. 

Mr. Greene, why would it take more than 48 hours to file immigration charges against an alien? And why would it take more than 

48 hours to bring an alien before an immigration judge? 

Mr. GREENE. There are issues having to do with logistics. First 

of all, it may be an arrest made on a Friday afternoon or turned 

over from a local law enforcement agency on a Friday afternoon, 

and there would be then a period of roughly 72 hours before you 

could get the case before the immigration judge. There may also be 

substantive issues associated with—especially in the circumstances 

that we were dealing with after the 9/11 attacks—knowing with 

certainty the identity and the intent of the people that we had in 

front of us. 

So the flexibility—generally, it isn’t a problem for us to be able 

to do 48 hours and to serve the charging documents. But in certain 

circumstances it may be necessary for us to extend the process of 

inquiry, particularly with respect to identity and verifying claims 

that are made about how the alien came into the United States or 

attempted to enter the United States before we issue the actual 

charging document. 

49

Mr. HOSTETTLER. Thank you. 

Mr. West, in discussing the so-called 48 hour rule, once again in 

your testimony you note that it can take time for ICE to determine 

what the appropriate ground of removal should be. In what context 

would an ICE agent arrest an alien without knowing on what 

ground the alien was removable? 

Mr. WEST. Mr. Chairman, there are often times when an ICE 

agent, formerly an INS agent, an ICE agent would encounter an 

alien and determine that that alien was not here lawfully simply 

by asking questions about how they entered the United States, 

what kind of documents they may have, and that alien may not 

present—as they are required by law to carry evidence of alien registration, once alienage is determined, that can be as simple as 

asking, are you a national or citizen of the United States? They 

say, no, I am from such and such country; I am a citizen of such 

and such country. Once they determine that, the burden of proof 

shifts, actually, now for the foreign national, the alien, to show that 

they are lawfully here in the United States. 

So once that ICE agent has established that this person is a foreign national, is an alien, they know that—the agent then knows 

that they have a person that must establish what their status is. 

And the way it really works in the real world is the agent will conduct record checks, either over the radio, on a cell phone. If that 

person has no documents that are presented or if the documents 

look bogus, if the record checks determine no lawful status at the 

time, then the grounds for actually detaining the alien, a prima 

facia case of probable cause that this alien is unlawfully in the 

United States has been met. 

The ICE agent will, in all likelihood, detain that alien, probably 

bring him back to his office to conduct further inquiries, further 

record checks to actually determine what specific charges under the 

Immigration and Nationality Act should be applied. He knows he 

has got an unlawful alien. He or she does not know specifically 

what charge might apply. That requires further inquiry, and that 

can take some time, that can take hours sometimes, running additional record checks, running down paper documents, that sort of 

thing. 

Mr. HOSTETTLER. Thank you. 

The Chair now recognizes the Ranking Member for 5 minutes for 

purposes of questions. 

Ms. JACKSON LEE. Thank you, Mr. Chairman. I am going to yield 

first to the Ranking Member of the Full Committee, and I will go 

after Mr. Conyers for his questions at this time. 

Mr. CONYERS. If that——

Mr. HOSTETTLER. The Chair recognizes the gentleman from 

Michigan for 5 minutes. 

Mr. CONYERS. Thank you. 

Let me raise a question, first of all, to Mr. Rosenzweig. 

Is it your general view that the four issues that are raised in the 

measure that is before us are ones that could be attached to the 

larger bill that we are working on in the Committee without any 

serious detriment to our national security concerns? 

Mr. ROSENZWEIG. Yes. Most of the objections that I have heard 

sound more in the nature of administrative, and those are certainly 

50

things that need to be considered, but providing that each—as each 

of these provisions does, that there are carve-outs, for instances, in 

which legitimate national security concerns are presented, that 

seems to me to answer most of that problem. 

Mr. CONYERS. I also take it, sir, that you believe that this balance between protecting constitutional and civil liberties concerns 

is very important as we proceed in this attack on terrorism. Because unless we have something different, unless we are identified 

differently from our adversaries, we end up losing or compromising 

our position in another way. 

Mr. ROSENZWEIG. It would be hard to disagree with that sentiment. 

Mr. CONYERS. Well, let me ask everybody at the table, then, 

since it is perfect—well, it may not be perfectly obvious. Does everybody agree with that, all of our witnesses? Ms. Swenson? 

Ms. SWENSON. Congressman, I would like to just make sure I understand——

Mr. CONYERS. That is all right. I will repeat it. 

Ms. SWENSON. Thank you. 

Mr. CONYERS. Is it your concern that we protect constitutional 

rights and liberties under our existing framework as we proceed in 

the war on terrorism or we become indistinguishable from our opponents? 

Ms. SWENSON. Most certainly, Congressman. 

Mr. CONYERS. Okay. Mr. Greene. 

Mr. GREENE. Yes, Congressman. I think the Department has 

gone on record that it is a both/and situation, that we can have 

both homeland security and protection of our constitutional rights 

as we continue in this struggle to protect the homeland. So not only 

do I agree, but I agree emphatically. 

Mr. CONYERS. Well, the current Attorney General said that, but 

his predecessor did not come to those conclusions, I am sorry to 

say, and that was the problem that takes us back to the beginning. 

Mr. GREENE. Yes. Speaking from the Department of Homeland 

Security, sir, I think Secretary Ridge has made clear that he wants 

to have both homeland security and civil rights and civil liberties, 

which is why we have created such a division within the Department and actively pursued this——

Mr. CONYERS. Well, I was thinking of the Department of Justice, 

and I won’t hold you to explain that. But I just wanted to make 

sure that we understand that we have essentially different views 

on this subject from my interpretation from the Attorney General 

that was there for 9/11 and the present Attorney General. 

How do you stand on this concern, Mr. West? 

Mr. WEST. Congressman, I was a Federal law enforcement officer 

for 29 years, and I believe that I fully understand what constitutional rights mean. Because every day that I worked I had to deal 

with constitutional protection issues. Now that I am a private citizen, I certainly expect my Government to protect my constitutional 

rights, but I also want my Government to protect my security, and 

I hope that that balance is struck. And I want that to happen for 

all of us. 

Mr. CONYERS. Let me ask you about this matter of D-J—oh, my 

time is up? 

51

Mr. HOSTETTLER. Five minutes. But the gentleman will be given 

an additional minute to ask a question. 

Mr. CONYERS. Thank you. 

I just wanted to find out—I suppose I should direct this to the 

representative from the Department of Justice. In the matter of DJ, we are talking about detaining mass exodus, 18-year-old, and yet 

we have two different policies dealing with the Cubans and with 

Haitians, and I am wondering if those can be squared. 

Maybe I should ask this to Mr. Greene, more particularly. So 

here we have Cubans, Haitians, the D-J Issue, in which we, apparently, for some are willing to send them a message that we are 

turning them back so that they won’t bother to come. Can you comment on that briefly? 

Mr. GREENE. Yes, sir, I will try, recognizing that it is a very complex issue. 

The legislative structure that governs the history of Cuban immigration to this country since the revolution is very, very different 

from that of other countries in the Caribbean. There were specific 

legislative provisions provided to Cuban immigrants that go back 

to the 1960’s that affect their availability and their right to come 

and remain in the United States. It was in an attempt to discourage all forms of mass immigration migration in the Caribbean that 

the former INS created the wet-foot, dry-foot policy. So if you made 

it to the United States, then the provisions from those statutes that 

came out of the Cold War period would apply, but while you were 

caught on the high seas the attempt was to create a deterrence. 

I mean, I will leave it to my colleague from the Justice Department to describe sort of the policy implications of the decisions 

today itself, but speaking from my knowledge of what operated in 

the former INS, it was really a different set of Cold War legislation 

that affected the one nationality as opposed to the other. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair now recognizes the gentleman from California for 5 

minutes. 

Mr. LUNGREN. Thank you very much, Mr. Chairman, for the 

time. 

Mr. Rosenzweig, as I understand your testimony, you have suggested that the subject matter that we are discussing here today 

is not really a question of whether there are constitutional violations. That is, the current law procedures that we are talking about 

are not unconstitutional, but rather your concern that perhaps 

some additional protective procedures would further the interests 

of civil liberties. 

Mr. ROSENZWEIG. That is correct, Your Honor—I am used to appearing in appellate court—that is correct, Congressman. With the 

exception of the blanket closure rule, which was held unconstitutional by one circuit court in the Sixth Circuit Court of Appeals, 

none of the policies that we are addressing today is, in my judgment, unconstitutional. And I would note that that policy was held 

constitutional by the Third Circuit. 

So what I really think we are discussing here today are questions 

of legislative grace, that is, what it is that this body, in consultaVerDate 0ct 09 2002 11:15 Nov 01, 2005 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\063005\22188.000 HJUD2 PsN: 22188
52

tion with the Executive, deems the optimal policy to reflect our values and our best cost/benefit analysis of what to put in place. 

Mr. LUNGREN. Thank you. 

Ms. Swenson, with respect to closed immigration hearings, you 

suggested that there were approximately 600 cases that followed 

the Creppy memo, that that is not the policy of the Department 

now, has not been for two-and-a-half years, but you believe it imperative that the Executive Branch retain sufficient flexibility to 

close an entire class of immigration proceedings if circumstances 

warrant. 

How and in what way would that—the long-term policy of the 

Administration—be hampered if we were to adopt the legislation of 

Mr. Berman and Mr. Delahunt, specifically section 101, which 

would have as a general proposition that the removal proceedings 

be held pursuant—or that they would be open to the public, except 

when an immigration judge would, on a case-by-case basis, make 

these specific determinations? And then, also, the requirement that 

a compelling governmental interest be shown? 

Ms. SWENSON. The debate, as I understand it, between on the 

one hand the current state of affairs and what would be presented 

under the bill is the difference between whether the Attorney General be shackled from being able to effectuate a closure of a category of cases instead of turning closure decisions exclusively to the 

province of individual immigration judges in a time of national 

emergency. 

At this time, and at every time in history, our research reveals, 

other than after 9/11, there is a case-by-case determination. It is 

not on a strict scrutiny basis by individual immigration judges as 

to whether or not to close immigration hearings in almost every 

type of case but for, you know, special cases involving child abuse, 

which is the only other type of blanket closure that is available 

right now. 

Mr. LUNGREN. But my question is—the legislation here would 

not permit you to have a blanket policy as you had in the Creppy 

memo, and so my question is, in what way would this shackle the 

Justice Department from doing what we want it to do, that is, to 

protect us from the threat of terrorism? 

Ms. SWENSON. Even the Creppy memorandum wasn’t actually a 

blanket closure because each individual special interest case had to 

be individually determined to be—to warrant special interest treatment. So even the Creppy memorandum had an individualized 

case-by-case basis. 

Mr. LUNGREN. Well, I guess my question would be this: Is it 

more than just the administrative burden, as suggested by Mr. 

Rosenzweig, that you are looking at? Is there a concern that there 

would be failure on the ability of the Department to make its case? 

Number one. 

Or, number two, is it because of the inconsistent rulings of individual immigration judges that you fear would result in an inability for us, as a Government, to protect us from some terrorist 

threat? 

Ms. SWENSON. All three of those concerns, Congressman, are implicated by the bill. 

53

First, it would be an administrative burden, that is true. But, 

more importantly, in a situation where there is a national emergency, it is not clear that the Government would be able to prove 

on a case-by-case basis and a strict scrutiny basis the closure of 

each individual case. And if it is not able to do that, whether it be 

as a result of the number of individual closure requests or because 

immigration judges would decide each case inconsistently, that 

could be the type of thing that would cause individual bits of information to be disclosed to terrorist groups, who could then fit that 

information to a larger mosaic that would thwart Government efforts. 

Mr. LUNGREN. Mr. Chairman, I have more questions, but I hope 

we can have another round. 

Mr. HOSTETTLER. I don’t know if we will have another round. If 

the gentleman would like to ask unanimous consent for an additional minute. 

Mr. LUNGREN. I would like to ask unanimous consent for an additional minute. 

Mr. HOSTETTLER. The gentleman is recognized. 

Mr. LUNGREN. What I am trying to determine is this: Is it because of the uncertainty that necessarily occurs in cases such as 

this? That is, if we are under an imminent threat of terror that, 

as we are responding to an unknown threat out there, that we believe that we need this for the Attorney General? 

Because in normal circumstances we would have the luxury, if 

you will, of having more knowledge of what it is we are looking for, 

not only generally but specifically with the individual, and that 

that sort of unique set of circumstances is at the basis of what you 

and the Justice Department think you need. I am trying to figure 

out why you say—every time I ask you the question about the 

Creppy memo, you tell me, well, under most circumstances in the 

history of the country we haven’t done this. I understand that. 

That is why we are asking why you should retain this flexibility, 

as opposed to the Berman-Delahunt construction, which would say, 

no, even in those situations we think the Government ought to 

have the burden. 

Ms. SWENSON. Well, if ever we were to face another attack, God 

forbid, there could be—well, the easiest way to look at this is to actually take the actual events of 9/11, because that actually happened, and look at what happened there. 

The number of closure cases that came in the immediate aftermath of the terrorist attacks made it necessary for the Attorney 

General to be able to say, look, for this class of cases we need to 

have closure, we need to have uniformity in decision, and we need 

to be able to close the cases without having to do an individual 

case-by-case determination that would take a great amount of time. 

Mr. LUNGREN. Thank you, Mr. Chairman. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair now recognizes the Ranking Member of the Subcommittee for 5 minutes for purposes of question. 

Ms. JACKSON LEE. I thank the gentleman very much; and as I 

have said, this is a, I think, an important effort at remedy, on a 

remedy that I think is necessary. 

54

Professor Rosenzweig, let me say to you that—and I like utilizing 

the term ‘‘professor’’, and I also am glad to see you again. Only because my time was short that I did not get a chance to probe you 

during the questioning dealing with privacy issues. Maybe we will 

have another opportunity. 

But I do believe we have common ground because we are offended, mutually, not because of what we did after 9/11—there was 

general unanimity on that issue—but because I think we can do 

better in balancing both concerns as we move forward. 

I do want to say to Ms. Swenson—I just want to acknowledge a 

statement. I am just going to make this statement, that you indicated in your statement that the closed hearings are not really 

closed in an ordinary sense because aliens and their counsel are 

free to release information about their proceedings to their family 

members, friends, witnesses and the press. So to me that is inconsistent with any argument by Justice and others for the closing of 

the hearings, which are allegedly to protect confidential information. I make that as a broad statement. 

I would ask you, in your statement that you made mention of the 

automatic stay provision for bond appeals has only been used a few 

hundred times since they were enacted in 2001, and I would like 

to know how long those aliens were incarcerated while their appeals were being—pending before the Board of Immigration Appeals, and what the danger would be for having those individuals 

having bond hearings to allow them to be released to their families. 

I am asking that, but I want to get Professor Rosenzweig, if you 

would, one, to expound on the theory that you offered. At the same 

time, I want you to finish the two points that you wanted to make. 

But I would like you to expound on something that I think was extremely salient, and that is that the overall argument of our good 

friends here at the table alongside of you, at least those from the 

Government, is that it poses an administrative burden if we begin 

to do case-by-case analyses. 

To me, we need to move swiftly to fix it. Because I slightly disagree with you. You are absolutely right that constitutional rights 

do not fall upon an immigrant coming to the shores, but if you are 

here, there are some constitutional protections that you have. 

So my idea is that we need to immediately rush to fix these problems because we should not be standing on administrative principles if we can find a balance. 

I yield to the professor. 

Mr. ROSENZWEIG. If I said that there were no constitutional 

rights for immigrants at all, that would certainly be wrong. They 

certainly possess some rights, and the courts have so held, in coming to the United States. So I would agree with you. 

I guess I would take the opportunity to speak to the other two 

provisions——

Ms. JACKSON LEE. And the other administrative. 

Mr. ROSENZWEIG. And the administrative. 

With respect to 201, the notice of charges idea, again, it strikes 

me that what we are talking about here is something that has—

it serves an important transparency function. You can’t answer 

charges you don’t know about, and it is only when you are notified 

55

of them that you begin to have the opportunity to develop an answer. 

We have set up a system in which each immigrant is entitled to 

such a notice at some point in time, and it doesn’t strike me as unreasonable to set that time as at the same time that the INS—or 

ICE now—determines what those charges should be. 

Again, most of what I heard Mr. Greene say, and Mr. West, 

sounded like very real administrative concerns about the difficulty 

of collecting the information and making it—but those same concerns actually, to my mind, apply in any system we administer, the 

criminal justice system as well, and yet we try and find the way 

to do that. I mean, if it is really a resource problem, then the answer is probably more resources, which I am sure would make ICE 

very happy to hear me say that, rather than using the lack of resources as a justification for a legal regime. 

With respect to the automatic stay provision, which is 203, again, 

I hear the concern that, you know, if the release order is not stayed 

there is a possibility that the immigrant may abscond, and that is 

a legitimate and real concern. But, again, it seems to me the analogy to the criminal sphere is the appropriate one. We don’t have 

a system or a set of rules that allows for the automatic detention 

of criminal defendants who have been convicted. We have a presumption against their release, to be sure, and that seems to me 

to make a great deal of sense for a convicted criminal defendant, 

but it is only a presumption that the individual is entitled to rebut, 

and it is subject to an individuated determination, in the first instance, in front of the district judge, and in the second instance, if 

there is an adverse determination for either party on appeal. 

It does not strike me as unreasonable, since we have created a 

system of immigration judges and Bureaus of Immigration Appeals, 

to repose with those neutral third parties the ability to make the 

determination on stay, and to provide for appeal of an adverse determination by the Department if it loses and if it can demonstrate 

a reason to think that the immigration judge was wrong. And those 

are all very reasonable things. 

It is the kind of unilateral exercise of automatic authority by a 

trial attorney that strikes me as getting the checks and balances 

idea out of kilter a bit, since then the authority reposes not with 

the judges of the immigration court and the Bureau of Immigration 

Appeals, but with the trial attorney himself. And, again, I assume 

that the decisions they will make are not for bad motivation, but 

they remain human. 

Ms. JACKSON LEE. If I may, Mr. Chairman, just have him finish 

his administrative question quickly, and Ms. Swenson on her—if 

they will do it quickly—Ms. Swenson on her incarceration question 

that I asked you. 

Mr. HOSTETTLER. Without objection, the gentlelady will be given 

an additional minute. 

Ms. JACKSON LEE. I thank the Chairman. Let the professor—— Mr. ROSENZWEIG. I think I have captured most of what I wanted 

to say about administration along the way, which is, essentially, it 

is a real problem, but it shouldn’t be the decider on a set of legal 

rules. It should be—the decider on a set of legal rules should be 

the values that we think are the optimal resolution, and we should 

56

then provide the right resources to meet our ideals, not let our 

ideals be driven by our resources. 

Ms. JACKSON LEE. Thank you very much. 

Ms. Swenson, you heard my earlier question about those incarcerated, the automatic stay provision. How long were they incarcerated? Do you have any—— Ms. SWENSON. Just so I understand the Congresswoman’s question, if you don’t mind repeating it. 

Ms. JACKSON LEE. I would be happy to. 

In your statement, you mention the automatic stay provision for 

bond appeals has only been used a few hundred times since October, 2001; and I would like to know how long were those aliens incarcerated while their appeals were pending before the Board of 

Immigration Appeals? If you have some sense of how long, on the 

average, they were held. 

Ms. SWENSON. I just want to make a small clarification. I think 

it is very easy, in the context of immigration bond hearings, to 

think of bond as criminal bond, and you even use the word incarceration in connection with it. I think it is a very easy thing to sort 

of confuse, and I know the Congresswoman understands this. But, 

unlike in a criminal bond context, an alien that is held on bond for 

the most part can be released immediately if he or she returns to 

the country from where he or she is from. So it is not an involuntary incarceration type scenario. I mean, it is not a full answer, but 

it is, indeed, not like the criminal context. 

Ms. JACKSON LEE. But it is if you are in fear of returning to the 

country from which you have come and if you have been here and 

your family is here and there is no place for you to go. So do you 

know how long they have been held? 

Ms. SWENSON. I don’t want to give you the wrong information. 

The amount of time is, obviously, as a rule, dictates only as long 

as it takes for the Board of Immigration Appeals to consider the 

appeal. 

Ms. JACKSON LEE. So it might be a long time. 

Ms. SWENSON. I can get back to you on specific figures if you 

would be interested. 

Ms. JACKSON LEE. I would, Ms. Swenson. 

Thank you very much, Mr. Chairman. I yield back. 

Mr. HOSTETTLER. The Chair now recognizes the gentleman from 

California for 5 minutes. Yes. 

Mr. BERMAN. Thank you very much, Mr. Chairman. 

The great thing about a hearing like this is issues come up you 

don’t expect, and you have to sort of deal with them. 

The Chairman raised, right at the beginning of his questioning, 

an obvious thing that I hadn’t spent a lot of time thinking about: 

How do you make the case that the hearing should be closed when 

you don’t have blanket closures? Do you have to tell the immigration judge or do you have to reveal the national security issues, the 

privacy issues, the compelling Government interests for closure in 

an open hearing? 

Well, that would be crazy. But it turns out—I checked it out, and 

it is done. There is a prehearing hearing, and the prehearing hearing is closed. And that was before the Creppy memo. Because there 

was always the power to ask for a hearing to be closed based on 

57

these issues. So the Chairman’s very legitimate question, existing 

rules provide for a closed prehearing on whether the hearing 

should be closed or open, and that is how it is predicted. 

Now, Ms. Swenson, a lot of what you say is different than what 

we read in the Inspector General’s report. And what is so funny is 

I met with the Deputy Attorney General and I asked him about 

blanket closures, and he said, I think that was a mistake, we never 

should have done that. And I asked the Attorney General about it 

at a hearing, and he said, well, mistakes were made. In other 

words, your vigorous defense of your right to have these blanket 

closures is not consistent with what I have heard from both the Attorney General and the Deputy Attorney General. 

But I want to get into what the Inspector General told us. You 

sort of said the proceedings that were required to be closed to family members and the public and the press weren’t really secret because all detainees were free to publicize them as they liked. 

Here is what the IG says: The decision to house these special interest detainees in the most restrictive confinement conditions possible severely limited a detainee’s ability to obtain and communicate with legal counsel. Detainees interviewed by the Inspector 

General, the Justice Department Inspector General, said that each 

time the unit counselor made rounds through the facility he asked 

the detainees, are you okay? The detainees said that initially they 

did not realize that this question was shorthand for, do you want 

a weekly telephone call? 

A unit counselor confirmed to the Inspector General that when 

he made rounds to the facility to provide legal calls he asked the 

September 11th detainees ‘‘are you okay’’ to determine whether 

they wanted to make legal calls. Detainees who were interviewed 

reported that an affirmative response to the question of whether 

they were okay resulted in them not receiving a legal telephone call 

that week. A number of other sources suggest there were communications blackouts imposed on the detainees. 

The picture you paint in the hindsight, detainees could have coordinated a publicity campaign if they wanted to but probably 

didn’t because they were embarrassed, maybe, I think, overreaches 

in terms of what really was going on. 

But I also—you are the first person I know who has said that 

75 percent of the special interest detainees, this group of 600 that 

you referred to, retained private counsel. Since the names are a secret and the transcripts haven’t been made public, you’re the first 

source of information. If there is a way in a closed basis you can 

provide the information that 75 percent were, in fact, represented 

by counsel, I would be curious to know about it. 

And then the final thing that I would like you to—or the third 

thing I would like you to comment on is your claim that we 

shouldn’t be concerned about the detainees’ due process rights just 

because the hearings were closed to the public, press and family 

members. That is what—the public’s first amendment right to attend trials in which people’s liberty is at stake does serve to protect 

due process rights of individuals. That is what the Sixth Circuit 

says in the Detroit Free Press case. 

Having heard Mr. Rosenzweig’s testimony regarding the benefits 

of openness and how to treat the presumption and not using legal 

58

rules as the basis for lack of resources, and understanding that 

there’s always potentials that judges have different interpretations 

of facts, but deciding whether something is a special interest case 

is a decision made by FBI agents in different parts of the country. 

They could have different views of who should be in that special 

interest category—we don’t have an automatic formula that looks 

and makes an automatic decision that says, in the special interest 

category, not closed, open. I mean, it is part of our system. But I 

am just curious as to your response to Mr. Rosenzweig’s testimony, 

and do you really think a compelling Government interest standard 

is too high for the Government to meet? 

Ms. SWENSON. I guess there are—you have raised a number of 

issues there. I will just start with just taking apart one piece of 

what you mentioned and that is whether the Department or the 

Government would prefer to have hearings, whether they would be 

judicial proceedings or immigration proceedings like this open to 

the public; and the answer there is most certainly. Indeed, the vast 

majority of immigration hearings are open to the public. There 

are——

Mr. BERMAN. I didn’t know I asked that question. 

Ms. SWENSON. Forgive me, Congressman. Maybe you want to direct me to one particular point that you want me to address first. 

Mr. HOSTETTLER. Without objection, the gentleman will be given 

an additional minute. 

Mr. BERMAN. Thank you very much. 

Some of my points were, I guess you could say, rhetorical. 

But——

Ms. SWENSON. I am starting to learn how it works here. 

Mr. BERMAN. And I certainly wasn’t asking you to comment why 

you would say one thing when I got a different reaction from the 

Attorney General. That is unfair to ask you. I am mostly concerned 

about why you think a compelling Government interest standard is 

too high for the Government to meet in the context of presumption 

of openness but an ability to get it closed where there is a compelling Government interest in doing so. 

Ms. SWENSON. The current standard now is actually quite high. 

It is the Government, in order to close or to obtain a protective 

order over sensitive information, needs to be able to demonstrate 

a substantial likelihood of harm as a result of this closure—— Mr. BERMAN. That is for your individual closures, right? 

Ms. SWENSON. That is for the individual closures. That is correct. 

Mr. BERMAN. I am for going back to that, right. 

Ms. SWENSON. And that is actually what the current state of affairs is now. 

Mr. BERMAN. Except when you have a blanket closure policy. 

Ms. SWENSON. Right. Aside from the Creppy memorandum, that 

is the normal state of affairs. 

In a state of emergency, which is really the only situation that 

we think is an appropriate time for, you know, for a directive like 

the Creppy memorandum, it would be very difficult not only to 

meet a strict scrutiny standard on a case-by-case basis, but the 

amount of time it would take to be able to make that kind of a 

showing in individual cases and the possibility that immigration 

judges would, especially in that kind of a heightened standard, 

59

come up with inconsistent decisions on whether or not to close individual special interest cases would be unacceptably, you know, 

threatening to the national security. We would be unable to keep 

those——

Mr. BERMAN. What about FBI agents having to decide whether 

something is a special interest case and the possibility that the FBI 

agents in the West look at it differently than the ones in the East 

or the Midwest or the South? You always have individual decisions 

about classification. Individuals can come to different conclusions 

about the same set of facts. How do you deal with that? 

Mr. HOSTETTLER. The gentleman’s time has expired. 

The Chair now apologizes to the gentleman from Texas for not 

recognizing him in proper order, and he is recognized for 5 minutes. 

Mr. GOHMERT. Well, sometimes people say they don’t recognize 

me in a crowd, so it is not unusual. 

First of all, I want to address something that, Ms. Swenson, you 

had said. You had indicated if ever we were to face another event, 

God forbid. I think God has not forbidden, because I think we face 

another event every day, which makes your job all the more serious. 

I heard a fellow that believes God is sovereign say one time, just 

because God is sovereign doesn’t mean you lean on your shovel and 

pray for a hole. I think our Creator would certainly know our abilities, and we are expected to use them. So the trouble becomes in 

balancing self-protection versus, you know, the rights that we 

should have ourselves. 

So I want to ask each of you, and start with Mr. Rosenzweig—

we have talked before. I admire so much of your writings. But I 

want to ask each of you to answer this question: Do you believe 

there is a U.S. Constitutional right to remain in this country in violation of U.S. Immigration laws that are constitutional? 

Mr. ROSENZWEIG. No. 

Mr. GOHMERT. Mr. Greene? 

Mr. GREENE. No. 

Mr. GOHMERT. Ms. Swenson. 

Ms. SWENSON. I don’t want to be flippant and just say no, but 

no. 

Mr. GOHMERT. Okay. You and Nancy Reagan can just say no. 

Mr. West? 

Mr. WEST. No, sir. 

Mr. GOHMERT. All right. Thank you. 

Now, Ms. Swenson, you had mentioned that aliens have the right 

to voluntarily return to their country of origin, which would end 

the proceedings at any time; is that correct? 

Ms. SWENSON. That is right, Congressman. 

Mr. GOHMERT. Well, how does one actually go about communicating the desire to get out of jail free and go home? How is that 

communicated? How is that actually accomplished? 

Ms. SWENSON. This is probably more a question for Mr. Greene. 

Mr. GOHMERT. Mr. Greene, if you can help. 

Mr. GREENE. Thank you, sir. 

60

Through the lawyer or direct contact from the respondent in a 

hearing, the respondent, him or herself, can make an indication of 

a willingness to return; and at that point—— Mr. GOHMERT. To whom? 

Mr. GREENE. To the Government’s counsel or to the immigration 

judge or, frankly, to any number of Government officials who have 

legal authority to maintain custody over that alien. 

Mr. GOHMERT. So they drop by every day and say, hey, are you 

ready to go home voluntarily, or—— Mr. GREENE. The alien is generally the moving party. So it isn’t 

like we go to them every day and say, have you had enough? Are 

you ready? It is more like they would come to us and say, this is 

what we would like to do. 

Mr. GOHMERT. They come to you even though they are locked up. 

Mr. GREENE. They come to us in the metaphorical sense. Our 

people——

Mr. GOHMERT. Metaphorically it is very difficult for them to come 

to you to if they are behind bars. 

Mr. GREENE. Physically it is, but our people are there on site or 

are making visits or are in contact with our officials. 

Mr. GOHMERT. Because I have heard of people who have been in 

for weeks, would like to go home voluntarily, and can’t ever find 

anybody to communicate that to so they can. 

Mr. GREENE. I don’t know how—that doesn’t—that isn’t consistent with the sorts of things that I’m hearing from our detention 

people. 

Mr. GOHMERT. Well, I would appreciate if you would check on 

that, how that can actually be accomplished. 

The next question is a follow-up to that. If somebody does want 

to voluntarily go, they are able to communicate that, the U.S. Department of Justice says, great, take off, how do we make sure they 

actually exit the country? 

Mr. GREENE. Oh, we still escort them. 

But let me step back for a minute and just say that while the 

regulations authorize us to be able to accept a request of that nature, terminate the proceedings and allow that person to return 

home, it doesn’t always happen that way. And the reason that we 

don’t is that if I’m a person from a foreign country under arrest for 

a state charge of violence, for example, against an individual and 

in INS custody or in ICE custody or in Department of Homeland 

Security custody, the Government may not choose to allow that 

person to flee the consequences of the state criminal proceeding 

that is going on. 

That is an example of where we might want to—— Mr. GOHMERT. And as a judge, I can tell you anecdotal situations 

where, for example, one individual had a bunch of DWIs. INS 

never did anything until he came to my court as a felon. He has 

hurt people. He couldn’t stop getting drunk—and I would ask for 

an additional minute if I could. 

Mr. HOSTETTLER. Without objection, the gentleman has an additional minute. 

Mr. GOHMERT. I sent him to prison so he’s not a continuing 

threat to society, and within a couple months apparently he was 

out, because he came back to my court after he had another DWI 

61

and hit somebody. And I said, how are you back? And he said, well, 

they came and got me out of prison right after I got there, took me 

to the border, and that is how I got back here. 

So outside of—if INS is not going to get him out of the country, 

at least send him to treatment so if he’s going to be here he’s not 

gonna kill somebody. They let him stay 3 or 4 months, I think, before they deported him; and I don’t know whose county he ended 

up in. 

So my question is, how do we make sure that if they are—whether they leave voluntarily or leave involuntarily, how long do you 

stay there to make them wait to come back in? Do you stay 15 minutes to make sure they don’t come back in? Do you make them wait 

a whole hour before they turn around and come back in? How often 

do they beat you back to the county, as this guy did? What do we 

do to make sure they’re not coming back? 

Mr. GREENE. Our people will—especially on the southern border, 

our people will escort the person to the border and turn them over 

to the Mexican authorities, and they return. 

The Border Patrol will tell you that they have people on the border 24/7 precisely for the purpose of making that easy return to the 

United States much more difficult, if not impossible, but that is a 

whole set of other——

Mr. GOHMERT. You’d go on record as saying ‘‘if not impossible’’? 

You are aware there are a few people that come in every day, 

so apparently it is not impossible. 

Mr. GREENE. I didn’t say that it wasn’t impossible. I said that 

the Border Patrol are there. 

So your characterization that they beat us—we wait there for 10 

minutes before he comes back or an hour before he comes back, the 

Border Patrol are there all the time. They are at the border 24/7 

precisely for the purpose of managing that border, and that was my 

point. 

Mr. GOHMERT. All right. My time has expired. Thank you. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair now recognizes the gentleman from Massachusetts, 

Mr. Meehan, for 5 minutes. 

Mr. MEEHAN. Thank you, Mr. Chairman. 

My question is for Mr. Greene. In December, 2003, the Department of Homeland Security suspended a requirement that all individuals previously registered with the National Security Entry-Exit 

Registration System, known as the NSEERS, that they register 

within 30 days and 1 year in the United States. But NSEERS’ callin program—that was suspended. The call-in program continued, 

and I am wondering what the current status of the NSEERS program is. 

As I mentioned in my opening statement, I had read and worked 

with the Iranian-American Bar Association relative to their study, 

and I am wondering whether anything has been done to address 

some of the issues that were uncovered in this study, specifically 

deplorable conditions that the NSEERS’ registrants endured at the 

centers. 

One item of concern that arose from the NSEERS’ process was 

a status of men who did not come forward at the registration. Common sense would tell me that if somebody didn’t show up, they’re 

62

probably of more interest than those who did show up, and these 

people have been sent underground while—and it seems to me unlikely to cooperate with immigration officials. So what, if anything, 

has been done to investigate known immigrants that didn’t show 

up for the NSEERS’ program? 

Mr. GREENE. Congressman, I don’t have that information available with me now, so I am unable to sort of address the current 

state of the NSEERS’ program beyond what you have already characterized. I will be happy to get specific information on that program to you as quickly as we can. As soon as I get back to the office I will get that process started.

I know that there are—what I do know is that there are a number of cases that have—that flowed out of that program that are 

still under way, but how we can characterize beyond that? I will 

need to verify my information before I can do so. I am not aware 

of the status of the report that you have described, but I will look 

into that as soon as I return. 

Mr. MEEHAN. Does the characterization of the NSEERS’ program 

sound consistent with what you know? 

Mr. GREENE. It does. That is right. All we are working on is the 

call-in system that I am aware of, but that is dated information. 

And I say that with the caveat that, without going back and talking to the folks who are involved in that program, I would be reluctant to say that——

Mr. MEEHAN. But, as you may know, the legislation that—Mr. 

Berman and Mr. Delahunt and others’ legislation would terminate 

NSEERS and provide relief to those adversely affected. Has there 

been an effort to create or analyze a list of names, nationalities and 

a total number of registrants, do you know, that were detained 

under this program, including any impending applications that you 

know of? 

Mr. GREENE. I think that data was looked at in connection with 

the decisions that affected the way the NSEERS’ program was 

being deployed and utilized, so that some of the decisions that resulted in the termination of certain features of that program were 

based upon an analysis of some of that data. Again, I would need 

to go back—— Mr. MEEHAN. If you could get back to me on that, that would be 

great. 

Mr. MEEHAN. Would you support legislation to codify an existing 

homeland security memo related to the prosecutorial discretion to 

allow factors such as family ties to contribute favorably toward immigration proceedings? 

Mr. GREENE. I think the exercise of discretion and, frankly, the 

importance of family ties is crucial as the future of our immigration 

policy. And I base that certainly on my roughly 29 years of experience with the INS, 10 of which were as the District Director in the 

Denver District. 

I have always been concerned from a policy point of view of a legislative code going to the question of discretion. It seems to me that 

in working with the Committee we may find measures short of actual legislation that will create a spectrum of factors to be considered in the exercise of discretion; and, frankly, we would be happy 

to continue to discuss that with you. 

63

Mr. MEEHAN. Thank you. And I will get you those questions in 

writing before the end of the hearing. 

Thank you, Mr. Chairman. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair now recognizes the gentlelady from California for 5 

minutes. 

Ms. LOFGREN. I thank you, Mr. Chairman. I think this is an important hearing to sort through the legal issues. 

I want to specifically hone in on section 202 of the bill that we 

are talking about and mention again—maybe I will just talk about 

two cases that personally come to my attention just because they 

are in California, to put a human face on the discussion. 

The first case is a gentleman who entered the United States legally in the ‘70’s. He is a legal, permanent resident of the United 

States. He is married to a United States citizen, has three United 

States citizen children and is a successful businessman, employs 

hundreds of American citizens in his business in California. 

Ms. LOFGREN. In the seventies, he was caught up in an unfortunate matter where he pled guilty to a crime and nothing ever came 

of that. He went out on a business trip. When he attempted to reenter, the criminal conviction came up and he was put into exclusion. He was told that he would remain in jail forever unless he 

waived his right to appeal. And ultimately, I think he made big a 

big mistake, but in order to get out, agreed not to pursue his appeal. 

The second case is a Jewish woman from Russia who came into 

the United States on very shaky documents, personally, as a young 

girl. She straightened out. She married an American citizen. She 

had a U.S. citizen child. She was teaching violin at the Jewish community center in my county. She wanted to become a citizen and 

she got caught up in the entry. She was held in jail and told that 

she would only be allowed out if she agreed not to appeal her situation. And she had, at least arguably, one appeal that might have 

been successful. I wrote to our former colleague, Mr. Hutchinson, 

last year, asking him—this appears to be extortion, both individuals—in fact, the lady from Russia has been deported and has been 

separated from her husband and child, and her parents are also 

U.S. citizens. 

The other businessman is still here. They’re not flight risks. So 

the only issue was the Government extorting a waiver of their 

rights in order to get out of jail. It strikes me that that is not a 

good policy for the United States. 

And when I wrote to Mr. Hutchinson, he answered on April 15 

of last year: We appreciate your concerns regarding due process 

rights in relation to the release of detained aliens. We are, however, unable to provide any policy materials for your review, because the DHS does not have a policy regarding releasing detained 

aliens in exchange for a waiver of rights. 

It strikes me, therefore, that section 202 is an important element 

to putting some kind of order, due process and law into this situation. And I am wondering, this is Mr. Greene’s bailiwick, and I 

would appreciate a comment from Mr. Rosenzweig whether you 

think section 202 of the proposed act would regularize the two 

cases that I have described here today. 

64

Mr. GREENE. Congresswoman, it is always a pleasure to deal 

with your questions. I think it is true, that, again as both a matter 

of law and as a matter of good public policy and good governance, 

an individualized bond determination is a critical feature of that 

structure. I also think that there are certain public interests that 

need to be balanced against the individual bond determination, and 

particularly the kind of experience that those of us who come from 

the former INS had in Miami in 1980 as one of those examples. 

And it seems to me that knowing what we do know about the drain 

of resources that is involved in dealing with a mass migration 

emergency, especially now at a time when those resources are also 

committed to dealing with potential terrorist threats in the homeland, speaks to some prudence with respect to applying an individualized bond determination in every case or in every circumstance. 

I don’t—I am not comfortable with the situation you have described either. And if I can interpret the former Under Secretary’s 

memo, it could be that the sense was we don’t have a quid pro quo 

policy because that would be a bad policy, it would seem to me. 

Ms. LOFGREN. I would be happy to provide the letter to you. 

Mr. GREENE. And I would happy for you to do that because i’d 

like to look into those cases if you don’t mind. 

Ms. LOFGREN. I ask unanimous consent for an additional minute. 

Mr. HOSTETTLER. Without objection. 

Ms. LOFGREN. What he said, the decision is discretionary and we 

are balancing the risk of flight and public endangerment against 

the benefit of release. He did not address the issue of extortion of 

the waiver of rights in order to gain release, which I think is not 

very American. 

Mr. GREENE. Without knowing the facts——

Ms. LOFGREN. As a matter of policy. 

Mr. GREENE. As a matter of policy, what comes as close to what 

we are describing here is the circumstance we spoke about earlier. 

Ms. LOFGREN. If I may, these are just two cases. I have seen actually at least a dozen of these cases just pop through my office, 

and none of them have anything to do with terrorism, and most of 

them are people who have very strong ties to United States citizens, spouses and children. 

Mr. ROSENZWEIG. I am going to offer a pseudoacademic response, 

which is I think what you are saying is probably endemic to all of 

our systems. Waivers of rights of appeal are often part of plea bargains in the criminal justice system. And a large fraction of that 

is because we can’t—we don’t have the resources to deal with the 

throughput. 

So I concur with you that in many ways it is a very unfortunate 

circumstance. It sounds quite unAmerican. And I would think that 

a systematic reexamination of that and provision for individualized 

bond determinations may be, except in extraordinary circumstances, like mass migrations from Haiti. I don’t know how you 

couch that exception to the statute either, precisely. Tries to capture both ends. But unless we are going to massively expand the 

resources available in the immigration and adjudication system 

and parallel in the criminal justice system, which we are not going 

to do, you are going to see that no matter what. And it is an unforVerDate 0ct 09 2002 11:15 Nov 01, 2005 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\063005\22188.000 HJUD2 PsN: 22188
65

tunate thing, but I don’t know that we can bemoan it. But I don’t 

know we can necessarily fix it except in individual cases. 

Mr. HOSTETTLER. The Chair now recognizes the gentleman from 

Massachusetts for 5 minutes for questions. 

Mr. DELAHUNT. You know, Mr. Rosenzweig, you used the word ‘‘resources’’ again, and everything that I have heard here today 

tells me that—and with all due respect to both Mr. Greene and Ms. 

Swenson, there really are no sound policy reasons that I think that 

have been articulated that would contradict what the bill would 

propose to do. But, you know, in the end, democracy isn’t cheap. 

I mean, that’s the bottom line. 

And I’m reflecting back on our own history during World War II, 

the internment of the Japanese. And I’m not suggesting that 

they’re the same, but there are some parallels in the larger sense. 

And earlier, I quoted from the GAO about how we are perceived 

throughout the world, and, with all due respect, Mr. Greene, I receive a huge number of complaints from people coming to this 

country who say they are never coming back because they feel mistreated when they come to our borders. And I know you are the director of training. I mean, we have got to change, if you will. And 

I understand that we justifiably have a concern about our national 

security in the aftermath of our national tragedy, but there are real 

consequences that are long term in nature that affect our national 

security. And that GAO report enumerates them extremely well. 

But when I think that the people in a survey that apparently reflect the sentiment of the British people say they prefer China over 

the United States and we both have democratic traditions, we better wake up. We are not trying to do anything to diminish our national security here. But I think we’ve got to put this in a larger 

context. I mean, what is America really about if not about individualized justice and transparent government? When you think of the 

concept of America, that to me is the essence of what we are in 

terms of a body politic. 

And, Ms. Swenson, you talk about, you know—we are talking 

about 24 hours, 48 hours, I don’t care if it’s 72 hours or a week. 

We did a week in the PATRIOT Act, and concerns about, you know, 

during the course a motion, you know—I’m using terms from the 

criminal law to close a hearing—I don’t think—I can’t speak for 

Mr. Berman, but I would presume that that motion to close a hearing would be conducted in camera. I mean, there just doesn’t seem 

to be any policy issues. 

I think in response to Mr. Berman’s raising the potential inconsistency among individual FBI agents, in terms of who is a potential bad guy and who is not, is a very real one. I understand we 

don’t operate in a perfect world. But I just fail to see, you know, 

why there would be any objection, obviously, with some tweaking, 

to the bill that is under consideration here today. 

I think it was Mr. Rosenzweig who put it out there, and he said 

this is about recalibrating checks and balances. And you know, we 

have got to really remember our own history here and what we’re 

about and what we stand for as a Nation. And I’d invite any comment from any of the panelists. 

Mr. GREENE. I would only say this, Congressman, that both as 

a citizen, as a employee of the executive branch and as a 32-year 

66

public servant with the Government, that I am equally concerned—

and I know my department is equally concerned—about the perceptions that we create by the policies that we implement to make our 

country safe. And our willingness to work with the Committee, 

with everybody here to find the right calibration, is unstinted in 

that regard. 

Mr. ROSENZWEIG. I guess I would just add I think you have it 

exactly right. The genius of the framers of the Constitution was the 

context of both giving, as Hamilton said, energy to the executive to 

address our national needs while constraining that energy with the 

checks and balances. Those checks and balances are sometimes legislative—oversight of legislation. They are sometimes judicial oversight, but they are captured in the idea that we should be skeptical 

of any set of rules that operates in a broad brush without individuated consideration, and we should be skeptical of rules that tend 

toward the presumption against that oversight. 

That is not to say that there aren’t perfectly legitimate reasons 

in many, many instances, in which the end result of the policy 

ought to be exactly the same as either under the Creppy memo or 

under the process proposed. But how you get there, I think, matters. 

Ms. SWENSON. Clearly my turn since, you are looking at me, Congressman. 

Mr. DELAHUNT. It is not necessary. I just, you know, articulated 

my feelings. I want you to know that they are heartfelt. I understand that the problems that you encounter on a regular basis are 

considerable. If the Chair would indulge me for an additional 

minute. 

Mr. HOSTETTLER. Without objection, the gentleman is recognized 

for an additional minute. 

Mr. DELAHUNT. I have a question here, and I’ll direct it to Ms. 

Swenson and Mr. Greene. You lay out in your testimony the dual 

authorities of the Department of Homeland Security and the Attorney General under 236 (a). That is a small a. I’m curious about 

236, large A, that was added by section 412 of the PATRIOT Act. 

We have been informed that this power has never been used. 

Can you tell us who now has the power of certification granted 

in section 412? And has it ever been exercised? If it hasn’t, is it 

still necessary? You know, the Members of this Committee worked 

hard in negotiating that language and we unanimously agreed—because I participated in those discussions—that the power to hold 

somebody for 6 months at a time essentially on the word of the Attorney General was an extraordinary power. It was something we 

were willing to do in an emergency, but we knew it had to be monitored closely. So whoever has the authority to—over 236 A—one 

of you owes us six out of the last seven reports required by that 

provision of the PATRIOT Act, and I’m sure they will be forthcoming shortly after the conclusion of this hearing, Ms. Swenson. 

I yield to my friend from California. 

Mr. HOSTETTLER. The time for the gentleman has expired. And 

by unanimous consent, he has been given an additional minute, 

and that will be used by the witnesses to respond to the question 

at this time. 

67

Ms. SWENSON. Well, I won’t use too much of that minute, but I’m 

not prepared to talk about the PATRIOT Act today, but I would be 

happy to take any questions back to the Department and get you 

an answer. 

Mr. GREENE. Thank you. My bench tells me that is not entirely 

resolved and we will get back to you. 

Mr. BERMAN. The only other issue I want to bring up in all my 

second round—and I don’t need any of that—is just on this one 

issue. This was an interesting case where the Justice Department 

came to us with this need to be able to detain longer. And then in 

extraordinary circumstances, based on the certification, to hold— this is about removal versus indictment and how long you have to 

decide and to hold. 

We give in the PATRIOT Act this authority 7 days to make that 

decision and extend the time to appear before an immigration 

judge. And then the authority, I guess, is totally unused, and on 

its own; you promulgate a regulation or exercise some preexisting 

authority to do it without any of the safeguards or balances. I think 

this is one of the four issues that is directly connected to the PATRIOT Act where the Congress here—it is appropriate for us to set 

the ground rules. And that is all I wanted to say. 

Mr. HOSTETTLER. The gentleman’s time has expired. The Chair 

wishes to thank members of the panel for your contribution to this 

deliberation as well as the record. At this time, I would like to yield 

shortly to the gentlelady from Texas if she wishes to make a comment. 

Ms. JACKSON LEE. I want to again thank the Chairman of the 

Full Committee and yourself and the Ranking Member of the Full 

Committee and Mr. Berman and Mr. Delahunt for I think focusing 

on a very important issue. 

I leave the witnesses with this sort of backdrop. Yesterday we experienced another wonderful exercise of running without your 

shoes on at a fast pace, and those of us who are ladies with high 

heels, faster than you could have imagined we could have run. It 

was a second incident of a private airplane entering nearby our secured airspace. And on the second time around, as a Member of the 

Homeland Security Committee, my first response is to ban all private airplanes nationally. And then I narrowed my thought processes and then said anywhere within 1,000 miles of Washington, 

D.C. 

I use that to say, even though we will probably have to address 

that, Mr. Chairman, is probably overbroad. And I would only hope 

that out of this hearing, with the humor I have just offered you, 

my good friends from Justice and ICE would recognize that what 

we are saying to you is that we are in sympathy. We are your colleagues on this issue on the war on terror, but we find there are 

aspects of what is being utilized that are overbroad, and that we 

can find the balance that Professor Rosenzweig has indicated and 

this legislative initiative has indicated. And I hope the Chairman 

and myself will be able to work through these issues and find some 

common ground. 

We welcome the Justice Department and ICE. And I want to 

thank Mr. West for his service of 29 years. We welcome you in participating in this process. 

68

And with that, Mr. Chairman, I yield back. 

Mr. HOSTETTLER. Thank the gentlelady and wish to amen her in 

the ban of 1,000 miles of any private aircraft. Once again, I thank 

the members of the panel. 

All Members are advised that they will have 5 legislative days 

to make additions to the record. Without objection, this Subcommittee is adjourned. 

[Whereupon, at 12:20 p.m., the Subcommittee was adjourned.] 

(69)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, SUBCOMMITTEE

ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

I have said many times that immigration does not equate with terrorism, but I 

understand that it was difficult to maintain that distinction during the aftermath 

of the September 11th attacks. The purpose of this hearing is to take a calmer look 

at some of the immigration removal procedures and detention policies that were implemented during that period. 

On September 21, 2001, Michael J. Creppy, the Chief Immigration Judge for the 

Executive Office for Immigration Review (EOIR), issued a memorandum to all Immigration Judges advising them that the Attorney General had implemented additional security procedures for certain cases. In these cases, the Immigration Judges 

were required to close the hearings to the public and to avoid the disclosure of any 

information about the cases to anyone outside the Immigration Court. 

Secret hearings are inconsistent with our most basic principles of fairness. Immigration removal proceedings determine whether individuals will spend months in 

detention, be separated from their families, and then be removed from a country in 

which they may have lived for years. Hearings should not be conducted behind 

closed doors unless there is a compelling reason for such secrecy. 

This practice is addressed by Congressman Berman’s Civil Liberties Restoration 

Act of 2005, H.R. 1502, which I have cosponsored with Congressman Delahunt. Section 101 of the Civil Liberties Restoration Act would prohibit blanket closures of immigration hearings. It would permit closure only when the government can demonstrate a compelling privacy or national security interest. 

Before September 11, 2001, the former Immigration and Naturalization Service 

(INS) was required to decide whether it was going to initiate deportation proceedings within 24 hours of arresting an alien. On September 20, 2001, this was 

changed to 48 hours or an additional reasonable period of time in emergency or 

other extraordinary circumstances. 

Section 102 of the Civil Liberties Restoration Act would require DHS to initiate 

proceedings within 48 hours of an alien’s arrest or detention. It also would require 

that any alien held for more than 48 hours be brought before an immigration judge 

within 72 hours of the arrest or detention. This would not apply to aliens who are 

certified by the Attorney General to have engaged in espionage or a terrorist offense. 

Although the Supreme Court has upheld mandatory detention when Congress has 

expressly required such detention for a discrete class of non-citizens, it has not authorized the executive branch to make sweeping group-wide detention decisions. 

Nevertheless, since September 11, 2001, the Department of Justice (DOJ) and the 

Department of Homeland Security (DHS) have mandated the detention of certain 

classes of non-citizens without any possibility for release until the conclusion of proceedings against them. 

Section 202 would require DHS to provide all alien detainees with an individualized assessment as to whether the detainee poses a flight risk or a threat to public 

safety, except detainees in categories specifically designated by Congress as posing 

a special threat. 

On October 31, 2001, the Justice Department issued a rule that enables the government to nullify a judge’s order to release an individual on bond after finding that 

he is neither a flight risk nor a danger to the community. The rule permits the Department to automatically stay an Immigration Judge’s decision to release an alien 

if the government originally denied bond or set it at $10,000 or more. No standards 

70

govern the granting of a stay in these cases; it is simply at the discretion of the 

government. 

Section 203 permits the Board of Immigration Appeals to stay the immigration 

judge’s decision to release the alien for a limited time period and only when the government is likely to prevail in appealing that decision and there is a risk of irreparable harm in the absence of a stay. 

I hope that we can work together to resolve these issues. Thank you.

Æ