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SCOTT GARDNER ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION POLICY AND ENFORCEMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

ON

H.R. 3808 

MARCH 7, 2012 

Serial No. 112–96 

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 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION POLICY AND ENFORCEMENT

ELTON GALLEGLY, California, Chairman 

STEVE KING, Iowa, Vice-Chairman 

DANIEL E. LUNGREN, California 

LOUIE GOHMERT, Texas 

TED POE, Texas 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

PEDRO R. PIERLUISI, Puerto Rico 

GEORGE FISHMAN, Chief Counsel 

DAVID SHAHOULIAN, Minority Counsel 

(III) 

C O N T E N T S 

MARCH 7, 2012 

Page 

THE BILL 

H.R. 3808, the ‘‘Scott Gardner Act’’ ........................................................................ 3 

OPENING STATEMENTS 

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California, and Chairman, Subcommittee on Immigration Policy and 

Enforcement .......................................................................................................... 1 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 7 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 8 

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

of California, and Ranking Member, Subcommittee on Immigration Policy 

and Enforcement .................................................................................................. 9 

WITNESSES 

The Honorable Sue Wilkins Myrick, a Representative in Congress from the 

State of North Carolina 

Oral Testimony ..................................................................................................... 12 

Prepared Statement ............................................................................................. 14 

The Honorable Mike McIntyre, a Representative in Congress from the State 

of North Carolina 

Oral Testimony ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

The Honorable Charles A. Gonzalez, a Representative in Congress from the 

State of Texas 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Charles A. Jenkins, Sheriff, Frederick County Sheriff’s Office, Frederick, MD 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 30 

Jessica M. Vaughan, Policy Director, Center for Immigration Studies 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Brian McCann, Chicago, IL 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 45 

Chris Burbank, Chief of Police, Salt Lake City Police Department 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 48 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 7 

Page

IV 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement ........................................................... 58 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Ranking Member, Subcommittee 

on Immigration Policy and Enforcement ........................................................... 106 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 113 

(1) 

SCOTT GARDNER ACT 

WEDNESDAY, MARCH 7, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION

POLICY AND ENFORCEMENT, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:34 p.m., in room 

2141, Rayburn Office Building, the Honorable Elton Gallegly 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Gallegly, Smith, King, Lofgren, Conyers, and Pierluisi. 

Staff present: (Majority) Dimple Shah, Counsel; Marian White, 

Clerk; and (Minority) Tom Jawetz, Counsel. 

Mr. GALLEGLY. Good afternoon. We are going to call the Subcommittee to order. Today, we are going to be addressing H.R. 

3808, the ‘‘Scott Gardner Act.’’ 

Drunken driving is a serious crime that resulted in 10,839 

deaths in 2009. 

Yet, there are numerous documented cases of illegal immigrants 

who receive convictions for drunk driving, and then are not deported. Although these illegal immigrants have no right to be in 

our country; they remain in the United States. They are simply released and often go on to drink and drive again. This problem cannot continue to be ignored. 

In a recent and egregious example, Carlos Martinelly Montano 

drove while drunk, crashed into an oncoming car killing one passenger and critically injuring two others. According to an ICE report, Montano had been arrested for drunken driving twice and 

reckless driving once. In two of the three cases, his immigrantion 

status was never checked, even though he was convicted and sent 

to jail for the first offense. 

Even when he was placed in ICE ‘‘custody’’ after his second DUI 

arrest, he was released onto to the streets with a GPS device. However, GPS monitoring does not prevent a released criminal from 

driving drunk. And we know that drunken drivers involved in fatal 

crashes are 8 times more likely to have a prior drunken driving 

conviction than all other drivers. 

On August 1, 2010, Montano got behind the wheel of his vehicle 

yet again after he had been drinking heavily. This time, tragically, 

he plowed into a car of three Catholic nuns, killing one and severely injuring the two others. Montano was subsequently convicted of felony murder and involuntary manslaughter. 

2 

The report claims that Montano would have been detained under 

subsequent ICE guidelines because he was a repeat offender, and 

he demonstrated himself to be a danger to public safety. However, 

an anonymous ICE official stated that two drunken driving incidents by an illegal immigrant ‘‘aren’t enough to warrant detention.’’ 

There is absolutely no reason for the Administration’s outrageous 

policy. 

Montano is not an isolated case. In 2011, an illegal immigrant 

and habitual drunken driver named Saul Chavez ran over and 

killed Dennis McCann of Chicago. Chavez had recently finished a 

sentence for 2 years of probation for an earlier aggravated drunken 

driving offense. Mr. Chavez was apprehended at the scene of the 

crime and booked in Cook County jail. ICE issued a detainer for 

Mr. Chavez, who already had a prior criminal record. The Cook 

County jail ignored the detainer and allowed Chavez to post bond. 

Chavez has since failed to appear in court. 

How many people must die before illegal immigrant drunken 

drivers are detained and removed? Why is it that they are not a 

priority for our Administration? Congress has no choice but to act 

since the Administration will not. 

Representative Myrick’s bill solves the problem and ensures that 

illegal immigrants who drink and drive are detained and processed 

by ICE. 

The bill contains common sense measures that require the detention of illegal immigrants who are apprehended for drunk driving 

after they are released from custody by local law enforcement; instructs the Department of Homeland Security to prioritize the deportation of an illegal immigrant who is convicted of drunk driving; 

requires a State or local law enforcement officer to verify with Federal databases, the immigration status of a person who the officer 

has apprehended for drunk driving and has reasonable grounds to 

believe is an illegal immigrant; gives law enforcement the authority 

to issue a Federal detainer to keep an illegal immigrant arrested 

for drunken driving in custody until he or she is convicted or transferred to a Federal facility. 

I strongly support this bill. It ensures that public safety is maintained, that law is enforced, and dangerous criminals are removed 

from our communities. 

And at this point, I would yield to my good friend, the Ranking 

Member, Ms. Lofgren, for her opening statement. 

[The bill, H.R. 3808, follows:] 

3 


HR3808-1.eps
4 


HR3808-2.eps
5 


HR3808-3.eps
6 


HR3808-4.eps
7 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I would like to let the Ranking Member of the full Committee, 

Mr. Conyers, precede me, if I may. 

Mr. GALLEGLY. Without objection. 

Mr. CONYERS. I thank, Zoe Lofgren. And welcome our colleagues, 

Sue Myrick, Mike McIntyre, and a former Member of Judiciary 

Committee, Charles Gonzalez. 

And briefly, and the reason I asked if I might proceed Zoe 

Lofgren is to remind you of the 10th Amendment of the Constitution: ‘‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the 

States, respectively, or to the people.’’ This was recently used by no 

one less than Justice Scalia, whose opinion used this premise that 

nothing in the Constitution delegates to the Federal Government 

the power to commandeer State law enforcement personnel to perform Federal background checks. That is the reason he struck 

down the relevant provision in the Brady Act, and it is the reason 

he might ultimately be forced to strike down H.R. 3808. So, my 

point is that we have a constitutional infirmity here that might be 

controlling. 

The opinion is important, and I just remind you there are a lot 

of other problems with using racial identity or ethnicity as a basis 

to suspect someone should be stopped. 

I thank you and return the balance of time, and ask unanimous 

consent to put my full statement in the record. 

Mr. GALLEGLY. Without objection. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

I want to begin by extending my sympathy to the families of Scott Gardner and 

William McCann. Losing a loved one is a horrible experience and I appreciate how 

much courage it takes to speak out publicly to try to ensure that similar tragedies 

do not happen in the future. 

I also want to welcome my three distinguished colleagues, Rep. Sue Myrick (RNC), Rep. Mike McIntyre (D-NC), and Rep. Charles Gonzalez (D-TX), who will be 

testifying before us on our first panel. Rep. Gonzalez was, until recently, a Member 

of this Committee and it is a special pleasure to have him back. 

Let me turn to the bill we are considering today. I do not doubt the intentions 

of the authors of this bill. Following the unnecessary and tragic death of Scott Gardner, my colleagues drafted a bill that they hoped would respond to the problem and 

they have continued to introduce versions of the bill in subsequent Congresses. Unfortunately, the bill has very serious problems. 

The bill’s central feature is its requirement that every time a State and local law 

enforcement officer apprehends a person for driving under the influence, that officer 

must determine whether there is a ‘‘reasonable ground to believe’’ that the person 

apprehended is an immigrant. 

The bill provides no guidance as to what officers can and cannot take into account 

when making that judgment. Should the officer consider the person’s race or ethnicity? What about the clothes or shoes the person is wearing? Should it make a 

difference if the person speaks with an accent? 

Based upon that officer’s judgment, the bill then requires the officer to verify the 

person’s immigration status by performing federal background checks. 

We know what is going to happen with a bill that directly invites racial profiling 

like this one does. We know that people who look, sound, and act different are going 

to receive additional scrutiny. Latino U.S. citizens—especially those who were born 

abroad and became naturalized citizens—will be detained by State and local police 

while background checks are performed. The same is true for lawful permanent residents and other law-abiding immigrants. 

8 

Back in November, the Subcommittee on Crime held a hearing about how smart 

policing can target criminal behavior. The hearing gave us an opportunity to talk 

about the many problems that result when race, ethnicity, or national origin play 

a role in ordinary police practices. 

Law enforcement officers have a difficult and dangerous job. We know that the 

majority of them perform that job professionally and without bias—and we value 

the work they do to keep our communities safe. But we cannot deny that the specter 

of racial profiling has infected the relationship between the police and minority communities. That is why more than half of the states have enacted legislation to address the issue of racial profiling and why I introduced H.R. 3618, the ‘‘End Racial 

Profiling Act.’’ 

There is another problem with this bill. This bill is unconstitutional because it 

commands State and local law enforcement officers to act in furtherance of a Federal law. The Supreme Court in Printz v. United States, 521 U.S. 898 (1997), struck 

down a similar provision in the Brady Act in an opinion written by conservative 

Justice Scalia. That opinion was based on the same Tenth Amendment, States’ 

right, and Federalism principles that many of my Republican colleagues believe in 

so strongly. As we know, the Tenth Amendment says: ‘‘The powers not delegated 

to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’’ Justice Scalia’s opinion is based 

on the premise that nothing in the Constitution delegates to the Federal Government the power to commandeer State law enforcement personnel to perform Federal 

background checks. That is the reason he struck down the relevant provision in the 

Brady Act and it is the reason he would be forced to strike down H.R. 3808 if given 

the chance. 

I think this bill needs to go back to the drawing board. I look forward to hearing 

from the witnesses and I yield the balance of my time. 

Mr. GALLEGLY. The gentleman from Texas, the Chairman of the 

full Committee, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Drunk driving is a national tragedy. According to the National 

Highway Safety Administration, someone dies in the U.S. in a car 

crash that involves alcohol an average of every 48 minutes. In 

2009, alcohol-impaired car crashes accounted for nearly one-third of 

all traffic-related deaths in the United States. 

According to the Centers for Disease Control and Prevention, 

drunk drivers drive intoxicated 80 times before their first arrest. 

The CDC also found that the annual cost to the Nation due to 

alcohol-related crashes totals more than $51 billion. These costs include lost productivity, medical costs, legal and court costs, emergency service costs, insurance administration costs, travel delay, 

property damage, and workplace losses. 

The Illegal Immigration Reform and Immigrant Responsibility 

Act of 1996 requires the Federal Government to detain aliens who 

are deportable on the basis of having committed aggravated felonies. 

The Immigration and Nationality Act provides that a crime of violence for which the term of imprisonment is at least 1 year is considered an aggravated felony. 

The Board of Immigration Appeals ruled that drunk driving is 

‘‘an inherently reckless act which exacts a high societal toll in the 

forms of death, injury, and property damage.’’ 

However, the Supreme Court ruled in 2004 that a criminal conviction for driving under the influence of alcohol, absent a malicious mental state, is not a crime of violence for immigration purposes. Therefore, current law does not require Immigration and 

Customs Enforcement to detain illegal immigrants who have committed drunk driving offenses. 

9 

Illegal immigrants who drive drunk should be detained until 

they have been removed so they cannot endanger more American 

lives. Unfortunately, ICE often fails to detain illegal immigrants 

who drive drunk. 

The Washington Post reported that ICE believes that two drunk 

driving incidents are not enough to warrant detention. This policy 

drives our country on a dangerous road, and puts American lives 

at risk. 

Representative Sue Myrick has introduced the Scott Gardner 

Act, named after a North Carolina man who was killed in a July 

2005 drunk driving accident that involved an illegal immigrant 

who had numerous previous drunk driving convictions. Representative Myrick’s bill mandates that ICE detain illegal immigrant 

drunk drivers. 

This legislation also requires State and local law enforcement officials to check with Federal databases to determine whether a 

drunk driver is an illegal immigrant. 

If North Carolina authorities had done this in the case of illegal 

immigrant Ramiro Gallegos, they could have detained him after 

one of his five previous DUI incidents. Scott Gardner would still be 

alive, and the tragic accident, which also left Gardner’s wife, Emily, 

in a vegetative state, could have been prevented. 

Sadly, similar tragedies have occurred across the country. In August 2010, Carlos Martinelly-Montano, an illegal immigrant with 

several prior DWI charges, struck and killed a nun in Virginia 

while driving under the influence. 

North Carolina resident Leanna Newman and her unborn child 

were killed in a wreck caused by an illegal immigrant who admitted to drinking before getting behind the wheel. 

In California, Sara Cole was paralyzed when she was hit by an 

illegal immigrant who was driving drunk and had previous convictions for DWI. 

These are just a few of the many instances where drunk illegal 

immigrants have injured or killed Americans behind the wheel. 

Representative Myrick’s legislation also provides State and local 

law enforcement authorities with the resources necessary to transport aliens to ICE custody. 

I support this bill as it protects public safety and ensures that 

Americans are not injured and killed by illegal immigrant drunk 

drivers. 

Thank you, Mr. Chairman. I will yield back. 

Mr. GALLEGLY. I thank the gentleman. The gentlelady from California, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I have tremendous sympathy for the families of Scott Gardner 

and William McCann. It is always terrible to lose a loved one, but 

particularly difficult when the death results from an irresponsible 

and criminal act. Drunk driving is a public safety threat. 

According to the Bureau of Justice Statistics, 10.5 percent of all 

arrests nationwide in 2009 were for driving under the influence, 

more than any other category of offense, other than drug abuse. 

This is clearly an area in which we need to do more to encourage 

law abiding behavior. 

10 

But I think we can all agree that when we respond to serious 

problems, we have to do so in a serious and constitutionally sound 

manner. We also need to make sure that our response does not create other problems, and unfortunately, although I have tremendous 

respect for the authors, I think H.R. 3808 fails on these fronts. 

First, the bill creates a new Federal mandate on State and local 

police officers that clearly violate the U.S. Constitution. In Printz 

v. U.S.K, the Supreme Court considered a Federal requirement 

under the Brady Act mandating that State officers make a reasonable effort to perform Federal background checks on prospective gun 

purchasers. The Court, in a Justice Scalia opinion, struck this provision down as a violation of the 10th Amendment. Noting that the 

States are their own sovereigns in our Federalist system of government, the Court held that the Federal Government cannot simply 

commandeer State officers to enforce Federal law. 

Like the Federal mandate in the Brady Bill, this bill establishes 

a Federal mandate requiring State officers to make judgments 

about whether persons who they apprehend or stop are immigrants, and, if so, conduct background checks to verify their immigration status. This fails the Supreme Court holding in Printz. Congress can no more require State officers to perform Federal 

background checks to enforce Federal immigration laws than they 

can require State officers to perform such checks to enforce Federal 

handgun laws. 

The bill’s unconstitutionality is not its only problem. The bill 

would also invite racial profiling and discrimination by requiring 

State officers to perform background checks only if they have ‘‘reasonable ground to believe’’ that the persons they apprehend are illegal immigrants. 

We have seen similar language in the recent Arizona and Alabama laws, which both require officers to verify immigration status 

if they have reasonable suspicion that a person is unauthorized. 

And like those laws, nothing in this bill provides any guidance on 

what might inform the basis for such a belief or suspicion. 

We have had our colleague, Mr. King, suggest that clothing, 

shoes, accent, or grooming would form the basis. ‘‘Sometimes,’’ Mr. 

King said, 11it is just a sixth sense.’’ But that is really not an appropriate basis for reasonable belief. We need to look no further 

than the recent investigation in Maricopa County, where the Department of Justice found that Latino drivers were between 4 and 

9 times more likely to be stopped than similarly situated nonLatino drivers. And the Department’s experts said it was ‘‘the most 

egregious racial profiling in the United States that he has ever personally seen in the course of his work, observed in litigation, or reviewed in professional literature.’’ And just this January, the Department indicted four officers in East Haven, Connecticut for 

crimes stemming from egregious racial profiling against Latinos. 

By directing State officers to treat people differently based on 

their perceived alienage, the bill would essentially become a national version of the Arizona and Alabama laws, inviting widespread racial profiling and discrimination in violation of the Constitution. 

And finally, I must point out the irony in our consideration of 

this bill today. Some of those who support this bill for its effort to 

11 

prioritize removal of immigrants apprehended for DUI are the 

same Members who have been repeatedly objecting to the Administration on its efforts to set smarter enforcement policy. They are 

the same Members who argued against prioritizing criminals, including those convicted for DUI, over the spouses of U.S. citizen 

soldiers. They are the same Members who said ICE should go after 

innocent children the same way it goes after murderers and rapists. To do anything else would be backdoor amnesty, they said. 

Now, while those Members were arguing, the Administration 

went ahead and set new enforcement priorities to do exactly something about this issue. For example, while some have strenuously 

objected to efforts to clear immigration court backlogs by moving 

low priority cases to the back of the docket, the Administration undertook this initiative to improve its ability to quickly and efficiently remove high priority targets. Under the written guidance 

for this initiative, such targets expressly include persons with misdemeanor DUI convictions. 

The Administration’s efforts to prioritize DUI and other criminal 

offenses are also clear from current removal and detention figures. 

ICE figures show that the percentage of removals involving persons 

with criminal records is the highest it has ever been. And a recent 

snapshot of detention population shows that those with criminal 

convictions, the most frequent serious conviction, is for DUI. The 

truth is that while this Administration was working to prioritize 

the detention and removal of people convicted of DUI offenses, 

Members of this Committee objected every step of the way. 

We know that the drunk drivers who struck and killed Scott 

Gardner and William McCann both had prior convictions for DUI. 

I just wish that the Obama Administration’s smart enforcement 

policies had already been in place at those times so that their lives 

could have been saved. 

The problem with drunk driving is real. It is one that we as a 

society have yet to solve. But this bill will not get us closer to a 

solution. 

I look forward to hearing the testimony of my colleagues and our 

other four witnesses. And I yield back, Mr. Chairman. 

Mr. GALLEGLY. The time of the lady has expired. 

As you may or may not be aware, there is a vote. Actually there 

are a series of votes on the floor, and we have about 3 minutes to 

get to the floor. So, we will recess until such time that we have 

completed the 1, 2, 3, 4, 5 votes. I am assuming that it could be 

45 minutes to an hour. But whenever we are finished, we will reconvene. 

Thank you. 

[Whereupon, at 1:53 p.m., the Subcommittee recessed, to reconvene at 3:04 p.m., the same day.] 

Mr. GALLEGLY. We will call the hearing back to order. 

I would like to introduce our three witnesses, and we will move 

ahead. I know Mr. McIntyre is on his way, but there is a concern 

that we are going to have another series of votes, and I do not want 

to have the situation holding folks up any more than we have to. 

We have a very distinguished panel of witnesses on our first 

panel today. Each witness’ written statements will be made part of 

the record of the hearing in its entirety. I ask that each witness 

12 

summarize his or her testimony in 5 minutes. And at this time I 

would like to introduce our first panel. 

Congresswoman Sue Myrick represents North Carolina’s 9th District in the United States House of Representatives. She serves as 

Vice Chairman of the Energy and Commerce Committee, and was 

selected by House leadership to serve on the House Permanent Select Committee on Intelligence. From 2002 to 2004, the congresswoman served as Chairman of the Republican Study Committee. In 

addition, she has served as deputy whip since the 108th Congress. 

Mr. McIntyre, who will be joining us shortly, has represented 

North Carolina’s 7th Congressional District in the U.S. House of 

Representatives since 1996. He is a Member of the House Agriculture Committee and the House Armed Services Committee. Congressman McIntyre is a graduate of the University of North Carolina at Chapel Hill, where he also received his J.D. 

And our third witness today is Congressman Charles Gonzalez, 

is currently serving his seventh term in the House of Representatives, representing the 20th District of the great State of Texas. He 

is a Member of the House Committee on Energy and Commerce 

and House Administration. He is the Chairman of the Congressional Hispanic Caucus. Before serving in the U.S. House of Representatives, Mr. Gonzalez served most of his career in the legal 

field. 

We welcome you all. 

With that, I would yield to the gentlelady from North Carolina, 

Ms. Myrick. 

TESTIMONY OF THE HONORABLE SUE WILKINS MYRICK, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

NORTH CAROLINA 

Ms. MYRICK. Thank you, Mr. Chairman, and Ranking Member 

Lofgren, and all the Members. We appreciate very much your holding this hearing today and giving us an opportunity to present to 

you the Scott Gardner Act. I feel it is a vital piece of legislation. 

On July 16 in 2005, Scott Gardner, who was in my district, and 

his family were on the way to the beach for a typical summer 

beach trip. And they got to New Brunswick County, which is 

Mike’s area, and literally an illegal immigrant hit them driving 

drunk. Scott was killed. His wife is still in a vegetative state, and 

their two kids do not have parents. 

And after the accident, it was discovered that Mr. Gallegos , who 

was the driver of the car that hit them, this was not his first time. 

He had previously been arrested 5 times—5 times—for drunk driving. And so, this was not his first alcohol-related event. In 2002, 

he was also involved in a head on collision. 

So, after Scott’s death, that is when I first introduced the Scott 

Gardner Act, and it is been introduced every Congress, and I am 

very grateful that Representative McIntyre has been my co-sponsor 

every year. 

It does three things. It is called H.R. 3830, and it does three 

things. First, local and State officers will be required to verify immigration status by Federal databases of a person apprehended for 

drunk driving and believed to be in the country illegally. 

13 

In many jurisdictions, this is already being done by the Secure 

Communities Program, which is operational in 1,508 jurisdictions 

in 44 States. And it is expected to be implemented nationwide by 

Fiscal Year 2013. 

It would allow, not mandate, local and State law enforcement officers to issue a Federal detainer for any individual who is in the 

country illegally and has been arrested for DWI. Lastly, the bill instructs the Department of Homeland Security to prioritize the deportation of any illegal immigrant arrested for DWI. 

Since 2006, 11,494 illegal immigrants have been arrested in 

Mecklenburg County, which is my district and where I live; 2,789 

of these arrests have been for DWI. That is 24 percent. It is a problem, and it is only getting bigger. 

So, I have had many local law enforcement officers, some of them 

who have testified before your Committee, sit in my office and tell 

me this very same story from around the country. And because 

DWI is not considered to be a serious enough crime to warrant deportation, many of those illegal immigrants are released, jailed for 

a short period of time, and released and told to show up in court, 

and, of course, they never show up in court. That never happens. 

So, that leaves the illegal immigrant in the community and able to 

drive again drunk. 

In many cases, these illegal immigrants end up back in jail perpetrating the enforcement method of catch and release. It is ineffective, and in cases of DWI, I believe it is dangerous and wrong. 

You know, immigration reform is a divisive and highly controversial subject, but this Scott Gardner Act is not a controversial piece 

of legislation. This legislation simply gives local and State officers 

the ability to protect their citizens. It is their job, just as it is the 

job of the Federal Government to ensure the safety and security of 

our country. 

And, again, I thank the Subcommittee very much for holding this 

hearing today, and I would look forward to further consideration of 

the bill. 

With that, I yield back. 

[The prepared statement of Ms. Myrick follows:] 

14 

Prepared Statement of the Honorable Sue Wilkins Myrick, 

a Representative in Congress from the State of North Carolina 


Myrick-2.eps
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Myrick-3.eps
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Myrick-4.eps
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Mr. GALLEGLY. I thank the gentlelady. 

Congressman McIntyre. 

TESTIMONY OF THE HONORABLE MIKE McINTYRE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. MCINTYRE. Thank you very much, Mr. Chairman, Ranking 

Member, and Members of the Subcommittee. I am honored and 

privileged to have the opportunity to testify before you today about 

the Scott Gardner Act. And I would like to thank my good friend 

and colleague, Sue Myrick, for her great work on this. And our 

work together has been such that we hope that we will finally see 

this come to fruition. 

This was in response to a tragic accident that occurred in the 

congressional district that I represent, and what began as a family 

vacation obviously turned into the worst thing imaginable with 

Scott Gardner’s life being taken, and with his wife remaining in 

critical condition in a vegetative state. And what this has done to 

those two young children is truly something that I think Congress 

can be in a position to do something about. 

The drunk driver was a repeat offender, an illegal immigrant, an 

individual who should never have been in this country in the first 

place. And to have had five prior arrests, all DWIs, and one of 

those times his blood alcohol content being 3 times the legal limit, 

a transgression that only earned him 30 days in jail. There is no 

greater evidence that the immigration system is broken than when 

an illegal alien, who is a repeat offender and has earned himself, 

for all intents and purposes, felonious action, is able not only to remain in our country, but to continue committing the crime for 

which he has earned the felony. 

The Scott Gardner Act would ensure the DWI is grounds for 

mandatory detention and deportation of illegal immigrants. Now, if 

it is determined that the individual is within the country illegally, 

the officer is authorized to detain or transport the alien to Federal 

custody, whereby he or she shall be removed. 

This bill would also improve communications between Federal, 

State, and local law enforcement agencies, and it would allow those 

agencies and law enforcement to collect immigration information in 

the course of their normal duties. 

Let me just clarify something. As an attorney, I can appreciate 

the concern about the constitutionality, but I will also tell you, this 

is about a driving record being made available to stop the senseless 

and reckless taking of life on our highways. There is no mandate 

that violates the Constitution. To somehow sit here and act like, 

oh, we are going to violate the Constitution when this law has not 

even been tested yet, I think is preempting ourselves and our legislative duty. 

But to make a background check when there is a reasonable suspicion is not unconstitutional. Common sense dictates that any 

driver’s record for use of our public highways is subject to check. 

This is not the same as in the court case that has been cited today. 

The Second Amendment protects the right for the use of firearms. The Brady Act was entirely a different situation that the 

Court was protecting. Use of the public highways is a privilege. It 

18 

is not a guaranteed constitutional act. It is not under the Bill of 

Rights like the Second Amendment that protects the use of firearms. So, the use of public highways is a privilege, not a right. Licenses are issued by the government to allow someone to drive on 

our highways. And they ought to be checked, especially for someone 

who has a record of DWIs. 

In her concurring opinion, Justice O’Connor noted that the distinction here, when she was talking about, and she concurred in 

the majority opinion on the act that has been cited today, Printz 

v. U.S., said that that was a situation where State and local law 

enforcement officers must do background checks before issuing permits to buy firearms. That is distinctive language. What we are 

talking about is checking someone’s record after they have been 

issued a license to go on the highway, not before they are ever 

issued a license. And I think that has been overlooked today. 

Also, when we look at the fact that in the language Justice 

O’Connor also noted the Court appropriately refrains from deciding 

whether purely ministerial reporting requirements on State and 

local authorities are invalid. And, in fact, she says, ‘‘The provisions 

invalidated here are those that directly compel State officials to administer a federally regulatory program.’’ We are not asking anybody to administer a Federal regulatory program. We are saying 

check the record and see if this person, whoever it is that has been 

the privilege of driving on our highways, has traffic violations. That 

is not profiling. That is not administering a Federal program. That 

is common sense that a police officer goes and checks a person’s 

record. 

And in this case, it cost someone their life, and it cost two children the opportunity to know their parents. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. McIntyre follows:] 

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Mr. GALLEGLY. Thank you, Congressman. 

Congressman Gonzalez. 

TESTIMONY OF THE HONORABLE CHARLES A. GONZALEZ, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GONZALEZ. Thank you very much, Mr. Chairman, and, of 

course, Ranking Member Lofgren, for the opportunity of appearing 

before you today. 

This hearing is about a serious problem, but it is not the one the 

Chairman or my colleagues on this panel described. And the bill in 

question will not address it. The bill would only create more problems for State and local law enforcement. 

I will start with the problem that has already been cited. The 

National Highway Traffic Safety Administration reports that approximately 11,000 people died from DUI accidents in 2009. We 

know how to address the problem, though, and we are fortunate. 

And that is State and local law enforcement need more resources 

to put cops on the beat and prosecute offenders. 

If you really want to help to stop drunk driving in this Congress 

in laws that would reflect an effort, then join me and my colleagues 

in supporting the $5 billion investment in law enforcement which 

is provided in the American Jobs Act. 

Adopting H.R. 3808 would not help to stop drunk driving. It 

would force State and local police to spend their time on immigration duties instead of going after criminals. But drunk driving is 

not in the Subcommittee’s jurisdiction; immigration is, so let us discuss that. 

This bill will not stop anyone from immigrating. First, if they entered the country illegally, there will be no record for the police to 

find. I can also say with complete confidence that no one has ever, 

in contemplating entering the United States illegally, considered 

what might happen if he should be arrested for driving under the 

influence. 

Here is a worse problem. In California, a night in the county jail 

will cost $150. Local authorities have told me that they often lessen 

criminal charges to get inmates off of their rolls and sent to the Department of Homeland Security. This bill would just exacerbate 

this problem by giving State and local officers the unchecked authority to give up responsibility for people they picked up for committing crimes. 

Now, I handled drunk driving cases as a judge. It is a horrible 

crime, and I do not want anyone to get a free pass on drunk driving just because he did not get his passport stamped when he entered the country. But this bill will encourage State and local authorities to drop drunk driving charges to get the Federal Government to pay for the incarceration. And that is just plain wrong. If 

you read this bill in its exact wording, that is what is going to transpire in this country. 

More importantly, we are already doing what this bill tries to do. 

If an undocumented immigrant gets booked for DUI in any of the 

1,700 jurisdictions in the Secure Communities Program—and as 

has already been cited, I believe by the end of this year we will 

have 96 percent of the thousands of jurisdictions will come under 

Secured Community Program. 

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This program, the names will be run by the FBI and the ICE 

databank. If he is deportable, ICE can issue a detainer and pick 

him up. DUI is one of ICE’s priorities, and they have been very effective of late. We have seen a 30 percent increase in deportations 

since 2007. 

H.R. 3808 cannot help with deportations for drunk driving because ICE already considers DUI a high priority offense. This bill 

would only burden local law enforcement officers with additional 

responsibilities that they are neither trained nor equipped to handle. 

These are concerns about the Secured Community Program, and 

they have been expressed by Members of Congress. But its record 

of deporting criminals is not one of those complaints. 

In conclusion, Mr. Chairman, and the Ranking Member, and 

Members of the Committee, DUI is a serious crime with horrific 

consequences to our communities. And the seriousness and the horrific consequences are not determined by whether an accused is an 

illegal immigration or the town’s most outstanding citizen. Let us 

work together to, one, make sure that DUI or complaints, prosecution, and incarceration is enforced, and that the efforts are fully 

supported by us. Secondly, that bonding procedures are made with 

full knowledge of an accused’s criminal history. And lastly, that we 

do not avoid the trial, the conviction, and the punishment of those 

guilty of DUI. 

And I yield back, and I appreciate this opportunity. 

[The prepared statement of Mr. Gonzalez follows:] 

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Mr. GALLEGLY. I thank the gentleman. 

You know, it is typically our custom in the Judiciary Committee 

not to pose questions to Members who testify during the hearing. 

Today that is my preference. However, anyone that feels they have 

an important question they would like to direct to one of the three 

Members who just testified, I will not stand in their way. 


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But hearing no requests, we will thank the Members for their 

testimony, and look forward to working with you on this and other 

issues. Thank you. 

Ms. LOFGREN. I would like to join in your thanks, and especially 

our Member, my colleague, Sue Myrick, who was my classmate 

when I was elected, and who is retiring at the end of this session. 

It is wonderful to have you here. 

Mr. GALLEGLY. Thank you. 

Our second panel that we have today, if they would come forward. I will go through the resumes, and then we will start with 

Sheriff Jenkins. 

Our first witness is Sheriff Charles ‘‘Chuck’’ Jenkins. Sheriff Jenkins began his law enforcement career in the Frederick County’s 

Sheriff’s Office in 1990 and was elected to the office of sheriff in 

2006. After attending the Hartford County Sheriff’s Office Law Enforcement Academy, he was assigned to the patrol divisions and 

then to criminal investigations, where he conducted many high profile cases. 

Ms. Jessica Vaughan is the policy director at the Center for Immigration Studies. She has been with the Center since 1991, where 

her area of expertise is administrative and implementation of immigration policy. Prior to joining the Center, Ms. Vaughan was a 

foreign service officer with the U.S. State Department. She holds 

a master’s degree from Georgetown University and a bachelor’s degree from Washington College in Maryland. 

Our third witness, Mr. Brian McCann, retired in 2005 after 35 

years of teaching. From 1973 to 2005, he served as a special ed and 

history high school teacher in the Chicago Public Schools. Prior, he 

worked as an instructor for the U.S. Army, and taught at St. John 

the Baptist Middle School in Chicago. Mr. McCann earned his 

bachelor’s degree from Southern Illinois University, as well as a 

double master’s degree from Chicago State University. 

And our fourth witness today is Chief Chris Burbank. Chief Burbank has been with the Salt Lake City Police Department since 

1991. He was appointed to the position of chief of police in March 

2006. He has been an outspoken opponent to the cross-deputization 

of police officers as immigration enforcement agents. Chief Burbank graduated from the University of Utah, and is a graduate of 

the FBI’s National Executive Institute. 

Welcome. 

Sheriff, we will start with you. Mr. Jenkins. 

TESTIMONY OF CHARLES A. JENKINS, SHERIFF, 

FREDERICK COUNTY SHERIFF’S OFFICE, FREDERICK, MD 

Mr. GALLEGLY. Sheriff, would you mind pushing your button 

there? You may need to pull the microphone just a little closer. 

Sheriff JENKINS. I’m sorry. Good afternoon, Mr. Chairman, honorable Members of the Committee. It is a privilege to be here this 

afternoon and speak as a voice of local law enforcement in support 

of this bill. I have expressed previous testimony in prior Committees here in the House and on panels that I believe there is certainly a role for local law enforcement in the world of immigration 

enforcement and enforcing those laws. 

28 

I believe that this legislation will enhance the ability of law enforcement in general to assist in the enforcement of those laws. It 

will add additional teeth to the law, and more importantly, help 

preserve the safety and security of Americans. This law will ensure 

that illegal criminal aliens will no longer remain in our country 

after being arrested and convicted for driving while intoxicated. 

Drunk driving is recognized as a violent crime and typically is 

a reoccurring and irresponsible act against Americans on our roadways. It is a primary mission of local law enforcement to control 

drunk driving, to enforce the laws, and make our roads and highways safe in combatting drunk driving. It is truly a public safety 

issue. 

I am going to talk briefly about Frederick County, Maryland, 

which is about 1 hour northwest of D.C., where I serve as sheriff 

and chief law enforcement authority in that jurisdiction. 

My office currently participates in both the 287 Program and also 

Secure Communities. This 287(g) Program, having been very effective, working in partnership with DHS since 2008. 

I would like to point out that as of today, out of the 100—I am 

sorry, 1,032 detainers that have been lodged under the 287(g) Program in Frederick County, 97 of those detainers lodged were for 

driving while intoxicated. That equates to about 9.39 percent of the 

arrests of all detainers lodged in the Frederick County program. 

Currently, the way it is in law enforcement, in jurisdictions without 287(g), those offenders arrested for DUI and in this country illegally would and are typically released and back into our communities. Many are released back onto the streets after their initial 

appearance before a district court commissioner or magistrate. Oftentimes, they never appear for court and are not held accountable 

for their crimes. And many times they end up becoming repeat offenders in a revolving door system. 

I would like to cite three specific cases that I think are relevant. 

April 15, 2008, an offender was arrested in Frederick County and 

charged with driving while intoxicated with a blood alcohol content 

3 times the legal limit. This offense occurred in a school zone during school hours with the offender driving 20 miles over the speed 

limit. Without the authority to file a detainer under 287(g), he 

would have been released. However, during the intake, certified officers determined the offender was in the country illegally. He was 

held and eventually ordered removed. That may not sound like a 

big thing or very important unless it is your grandson, my son, or 

our daughter on that playground. 

March 1, 2011, law enforcement arrested an offender for DUI. 

During the intake screening, the offender was determined to be a 

lawful permanent resident, but because of his extensive criminal 

history, he was subject to removal. The criminal history consisted 

of 10 prior arrests and 4 prior convictions. A detainer was lodged. 

He was eventually removed back to Germany. 

There was a fatal crash August 22, 2010. The offender’s blood alcohol was .18, more than twice the legal limit of alcohol in the 

blood. This was a Guatemalan citizen, second conviction for drunk 

driving. He will serve a 4-year sentence, after which time he will 

face removal from the United States. 

29 

Opponents of this legislation will say that the law would invite 

racial profiling of ethnic groups, and result in discriminatory enforcement of the law, which is absolutely not the case. And I would 

reiterate, the wording is clear that the Federal database check to 

determine lawful presence will occur only after an arrest or apprehension for the DWI arrest. Status checks are not and will not be 

conducted prior to taking the offender into custody. 

If the status check indicates the unlawful presence of the offender in the United States, the local law enforcement officer is authorized to issue a Federal detainer to maintain that alien in custody in accordance with the agreement until the alien is convicted 

for the offense or the alien is transferred to Federal custody. This 

law will certain prioritize the removal of an illegal immigrant who 

is convicted of DWI. 

This is not profiling. This is not racial or ethnic bias. This is simply strong, effective law enforcement. 

Currently, the implementation and roll out of Secure Communities that we talked about, it may be the perfect time to look at 

this bill and go forward, and really put this into effect in conjunction with Secure Communities. DHS would certainly be able to 

train the officers to the extent necessary to prepare and issue the 

detainers on local offenders. 

I will end up here in a minute. 

I can speak to experience with my agency that DHS—ICE, if you 

will—has always provided outstanding oversight, supervision, and 

participation with their programs. DHS needs the help of local law 

enforcement to be successful in carrying out its mission. 

[The prepared statement of Sheriff Jenkins follows:] 

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Mr. GALLEGLY. Sheriff, because of the fact we may have a vote 

here, as I said to the previous panel, we will have your entire 

statement made a part of the record of the hearing. And with your 

concurrence, I will move on to Ms. Vaughan. 

Sheriff JENKINS. Okay. 

Mr. GALLEGLY. Thank you very much, Sheriff. 

Ms. Vaughan. 


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TESTIMONY OF JESSICA M. VAUGHAN, POLICY DIRECTOR, 

CENTER FOR IMMIGRATION STUDIES 

Ms. VAUGHAN. Thank you for the opportunity to be here today. 

The Scott Gardner Act addresses a very serious gap in immigration law enforcement that enables a particularly dangerous set of 

individuals to remain in our communities in defiance of our laws. 

Of course ICE already has the authority to detain and remove illegal immigrants in general, and has programs in place that 

prioritize the removal of those who are a threat to public safety. 

But in practice, many illegal alien drunk drivers are falling between the cracks, sometimes with tragic consequences. 

This problem seems to have become worse in recent years, not 

because ICE personnel are incapable, but because the current Administration has scaled back immigration law enforcement to affect 

only the most egregious offenders. In addition, they have made it 

harder for local law enforcement agencies to help ICE identify offenders, and they have failed to act against local governments that 

deliberately obstruct enforcement of the laws that Congress has 

passed. 

As we have heard, drunk driving is the most frequently committed violent crime in America. And illegal aliens who drive drunk 

usually come into our criminal justice system with three strikes: 

unlawful presence, drunk driving, and driving without a license. 

There simply is no rational argument for allowing drunk drivers 

who are also illegal aliens, to remain here. 

Experts agree that drunk drivers are particularly prone to re-offend, especially if they have not faced swift and stern penalties for 

their first offense. I have reviewed statistics from some of the local 

law enforcement agencies that keep track of the crimes committed 

by the illegal aliens that they refer to ICE, and the number of illegal alien drunken driving arrests was significant in all the jurisdictions I looked at. In some areas, drunk drivers represent one-fifth 

to one-half of the criminal alien caseload. But it is the significance 

and mainly the stories that you hear, as well as the statistics, that 

suggest that some are definitely escaping justice. 

This bill focuses on what is key to addressing the problem, and 

that is the need to detain these individuals. And I want to emphasize that I do not think ICE can detain every illegal alien that is 

ever encountered. That is not realistic. But ICE needs a clear mandate from Congress to get this particular group of offenders off the 

streets so that they can be sent back to their home country. 

Experience and studies have shown that illegal aliens who are 

not detained, especially those who are facing criminal charges, 

often will flee from proceedings in order to avoid prosecution and 

removal. Statistics show that nearly 60 percent of illegal aliens 

who are not detained while in proceedings will fail to appear for 

their hearings or ignore orders to depart. And there are more than 

700,000 absconders now at large, which is a 28 percent increase 

over 2008. 

Again, ICE already has the authority to detain illegal alien 

drunk drivers. The problem is the current policies constrict officers 

in the field from doing so in many cases. And, yes, there is a need 

for more detention space, but most problematic, as this Committee 

is aware, is that the White House had directed ICE to implement 

35 

policies that exclude all but the most egregious offenders from immigration law enforcement under a scheme, it euphemistically describes as prosecutorial discretion, but in practice is an amnesty. 

Now, too many illegal aliens who have been charged with crimes 

who once would have been detained arereleased, and government 

attorneys are directed to file motions with the courts to have their 

charges dismissed. It is certain that some number of illegal alien 

drunk driving offenders are benefitting from these lax policies. 

The other reason many illegal alien drunk drivers end up back 

on the streets and behind the wheel is because of local sanctuary 

policies where local governments actually block ICE access to noncitizen offenders. 

The Administration has not seen fit to challenge these actions 

despite a variety of tools at its disposal, including lawsuits, funding, and tools like Secure Communities. 

It is important to note that sanctuary policies are often adopted 

for the purpose of cultivating good relations with immigrant communities, but they do not seen to have that effect in practice. I 

have spent years following the research on this topic, and while I 

understand the concerns about trust, there really is no evidence to 

suggest that police-ICE cooperation has any significant effect on 

how immigrants view police, nor any chilling effect on crime reporting, or that it results in racial or ethnic profiling. 

Because when people, including immigrants, see that some laws 

are not enforced, this does not increase respect for local authorities. 

It only makes the community more vulnerable to criminals. 

This bill’s provision to allow local officers to issue detainers and 

transport drunk drivers to Federal custody definitely will help 

many law enforcement agencies, but there is definitely a need for 

more training in places. 

And, in addition, ICE should expand the cost-effective 287(g) Program, which is a force multiplier and adds local resources to the 

mix. And finally, it is about time for ICE to establish a victim’s advocacy unit to help give a voice to the people who are affected by 

crimes committed by illegal aliens, because currently they do not 

have a voice. 

Thank you. 

[The prepared statement of Ms. Vaughan follows:] 

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Mr. GALLEGLY. I thank the gentlelady. 

Mr. McCann. 

TESTIMONY OF BRIAN McCANN, CHICAGO, IL 

Mr. MCCANN. I want to thank the—— 

Mr. GALLEGLY. I do not know if your microphone—— 

Mr. MCCANN. Oh, okay. I want to thank the Chairman and the 

Committee for inviting me to speak on behalf of the McCann family 

back in Chicago. 

My remarks will focus on three areas. The first is a chronology 

of the criminal history of the young man that killed my brother 

dating back to September of ’08, to his release from custody this 

past November. 

He was an illegal immigrant, and he killed my brother last June. 

My family sincerely believes that my brother would be alive today 

if ICE and the criminal justice system cooperated within this time 

frame. 

I will also continue the chronology of events following my brother’s death that led to the flight of Mr. Chavez this past November. 

We are focusing more on this history of late because in 2008, Mr. 

Chavez was arrested for aggravated DUI, not too far from where 

my brother was killed this past June. He pleaded guilty that night, 

and in the police report, it stated clearly that he was illegal. Words 

he gave to the policeman was ‘‘I have no papers.’’ He did not say 

he was illegal. ‘‘I don’t have a license because I have no papers.’’ 

And this was tantamount to admission that he was illegal. 

We concluded that in the subsequent 4 months since his arrest 

in ’08 until he was put on probation in February ’09, that no less 

than 10, perhaps as many as 20, police officers and other members 

of the criminal justice system saw this police report that said he 

was illegal. But no one contacted ICE. 

We are convinced that had this cooperation taken place, my 

brother would be alive today. Think about that. 

Now, I do not know that this panel or the U.S. House of Representatives can do anything about leveraging the County of Cook 

back in Illinois, but I would like to think a message can be sent, 

at the very least. It is my family’s view that cooperation with ICE 

and Cook County is at issue. 

Now, following the second part of this chronology, following the 

death of my brother, he was issued a detainer because ICE used 

some sort of database. I cannot remember the name of it. And a 

detainer was issued a couple of days later. The assistant States’ attorney in Cook County assured us 3 weeks later, sometime in July, 

not to worry; if he posts bond, we have this back stop called a detainer. Well, I did not know what a detainer was. I know a lot 

about detainers now. But we were comforted that he would never 

be released, and that justice would be returned to the McCann 

family in some small measure, that retribution would follow. One 

judge in my community, who is retired, figured it would be anywhere from 4 to 12 years of imprisonment because of the prior aggravated DUI that he was convicted of. 

He was charged, by the way, with aggravated DUI with death 

and reckless homicide in Cook County. 

44 

Insult was added to injury because in November, I get this phone 

call from personnel in the Cook County sheriff’s department the 

Sunday before Thanksgiving. It was a recording that said Saul 

Chavez had been released, and then they hung up. And who am 

I going to call on a Sunday, you know? So, we had to wait until 

the next day to talk to the assistant States’ attorney. She ran down 

there, up to bond, I do not know how high, but up to bond and 

issued a warrant for his arrest. Well, four cops went out, and needless to say, he was not there. And the brother said, well, he went 

out for coffee, or he went shopping, or something. So, it was obviously all pre-arranged. 

The reason that he was able to post bond and be released is because in August, just a few months prior, the 17 members of the 

Cook County board passed this ordinance that effectively prohibited the sheriff from detaining or honoring these detainers. Think 

about that. 

And here we are as a family trying to make sense of all of this 

stuff. It is just bizarre. But yet that is what happened. And to this 

day, in fact, I was at a county board hearing—I did something 

similar to this a few weeks ago, and I learned that a couple of the 

county board members—— 

Mr. GALLEGLY. Pardon me, Mr. McCann, I would ask unanimous 

consent the gentleman would have one additional minute because 

the time has expired. But I would, without objection, would have 

an additional minute. 

Mr. MCCANN. Oh, thank you. 

Mr. GALLEGLY. Yeah, I mean, I want to give you a little additional time. 

Mr. MCCANN. Well, it will be less than that. 

What we were learned was that a couple of the county board of 

supervisors did not know that this amendment would apply to felons. They did not even know. Again, we think guidance needs to 

come from Capitol Hill. 

We are trying to have that ordinance amended, by the way. I 

have been spending a lot of time with five of the county commissioners that voted against the amendment. As of late, it is stalemated for a number of reasons, one of which is one of our recent 

county board members was indicted just last Friday, and so that 

has got them pretty occupied with other matters. 

But in any case, we are hopeful that it will come up for a vote 

in a couple of months, and that this will not happen to future families, and that a very, very small measure of justice will be returned 

to the McCann family if we can straighten out this ordinance in 

Cook County. 

With that, I want to thank you so very much for inviting me. 

And if there is anything else I can do, I will be more than happy. 

Thank you. 

[The prepared statement of Mr. McCann follows:] 

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Mr. GALLEGLY. Thank you, Mr. McCann, and I can assure you 

that this entire Committee passes on our sorrow and condolence to 

your family—— 

Mr. MCCANN. Thank you. 

Mr. GALLEGLY [continuing]. And other families that have suffered the same plight. 

Mr. Burbank, or Chief Burbank. 

TESTIMONY OF CHRIS BURBANK, CHIEF OF POLICE, 

SALT LAKE CITY POLICE DEPARTMENT 

Chief BURBANK. Thank you very much. The goal of local law enforcement is to provide for the public well-being and security, while 

safeguarding the civil rights of all persons equally without bias. 

Proper and effective policing occurs when we profile for criminal 

behavior. As the fight against terrorism has demonstrated, 

profiling on the basis of appearance is ineffective and exposes us 

to greater risk, allowing individuals exhibiting behavioral indicators to go unnoticed. 

I sincerely sympathize with Mr. McCann. The criminal justice 

system failed this family and allowed a tragedy to occur. The perpetrator should not have been released from custody, not for reasons associated with his immigration status, however, but for his 

demonstrated behavior and the threat his actions posed to public 

safety. 

As set forth in this bill, the loose interpretation of the reasonable 

standard pertaining to immigration status checks will place more 

individuals into the criminal justice system, creating a de facto 

mandatory detention program. Compulsory incarceration dramatically increases stress on an over-burdened detention system, necessitating the release of criminal offenders back into our neighborhoods. 

Last year, my department booked an individual for exposing himself to children on an elementary school playground. That individual spent 45 minutes in jail prior to being released due to overcrowding. We are fortunate this individual was no pre-disposed to 

engage in more serious criminal activity, such as abducting or injuring a child. 

It is vital that legislation and laws address the root problem, not 

ancillary circumstances. DUI is an act of irresponsibility and is 

preventable. Many drivers do not recognize the impact of their actions or understand the level of impairment that accompanies alcohol consumption. 

Many States have refused to publish driver rules and regulations 

in languages other than English. As a Nation proud of its immigrant heritage, it seems short sighted not to educate the motoring 

public. 

Studies have found that undocumented individuals under commit 

crimes compared to other segments of the population. There is no 

indication they drive intoxicated at a higher rate. Why then should 

we draft legislation not focused on the significant problem of DUI, 

but on a statistically insignificant issue. 

It is incumbent upon lawmakers and those who enforce the laws 

to conduct an unemotional evaluation of what is correct and proper 

when drafting and applying laws. H.R. 3808 invited racial profiling 

47 

by requiring State and local law enforcement officers to check Federal databases based on reasonable ground to believe the person is 

an alien. 

The encouragement to racially profile or to interject bias is exacerbated by the bill’s use of the overbroad term ‘‘apprehended’’ rather than ‘‘convicted,’’ which at least implies due process. The phrase 

facilitates pre-textual verification of immigration status. In this 

way, H.R. 3808 is a national version of controversial laws in Arizona and Alabama. 

This bill authorizes State and local officers to issue immigration 

detainers, inappropriately delegating authority to such officers absent training and accountability. We have seen the failure of immigration programs, such as 287(g), which coopts local law enforcement as immigration agents without oversight. Atrocious law enforcement abuses have led the Department of Justice to conduct investigations and issue indictments in Maricopa County, Arizona, as 

well as East Haven, Connecticut. 

At least under a flawed 287(g) agreement, the involved officers 

receive training. The Administration has drastically reduced funding to the program, and has indicated it will not enter into any new 

agreements. H.R. 3808 sidesteps any official agreement or training, 

exposing officers, agencies, and the public to abuses and complaints, thereby degrading public cooperation and trust. 

This bill inappropriately sets local law enforcement priorities. 

Perspective is imperative when allocating the limited and evershrinking resources of law enforcement should the Federal Government set DUI as a priority above all others in our cities. 

In Utah, officers typically process individuals suspected of DUI 

in the station and release them on a citation. This process takes 

between 30 minutes to an hour. If now officers are required to 

transport individuals to jail due to mandatory DUI protocol or immigration status checks, the out of service time because 2 hours. 

That is 2 hours that an officer is not stopping other DUI drivers 

or criminal perpetrators. Immigration status now becomes a priority, not criminal behavior. 

How is a police officer to determine that the individual is an 

alien unlawfully present in the United States without detaining 

and questioning anyone who speaks, looks, or acts as if they might 

be from another Nation? Is it not racial bias to subject certain individuals, based solely on surname or skin color, to a different standard or practice than others with whom we interact? 

The standard by which we judge successful police interaction is 

reasonableness. We expect our officers to interact in a responsible 

and prudent manner. In order to provide these outstanding men 

and women with the support they deserve, it is incumbent upon us 

as policy and lawmakers to ensure we provide them reasonable legislation. 

Thank you very much. 

[The prepared statement of Chief Burbank follows:] 

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Mr. GALLEGLY. Thank you very much, Chief. 

Let me ask you very quickly. I have had a lot of exposure as a 

former mayor 30 years ago working with local law enforcement, 

and since then working with district attorneys and other people in 

the criminal justice system. And I understand their issue of how 

much down time there is when an officer has to transport someone, 

book them, and so on and so forth. 

But you mentioned that when you make a DUI arrest, it is not 

uncommon—and if I misunderstood you, please correct me—that 

you would take him into your, I guess, either your headquarters or 

one of your precincts. Salt Lake City is a pretty good sized city, and 

you probably have several stations. And all the information is 

taken down, and that person is released. Do they make a bond? I 

assume you run a warrants check on them and things of that nature. Is that correct? 

Chief BURBANK. Absolutely, and they are issued a misdemeanor 

citation and then released with the promise to appear in court. 

Mr. GALLEGLY. Okay. Now, is it just a promise, or is there a bond of $10,000 or $50, or you just release them OR? 

Chief BURBANK. OR. 

Mr. GALLEGLY. Okay. Have you ever had anybody not appear 

that you released OR? 

Chief BURBANK. Certainly. 

Mr. GALLEGLY. What would you say the percentage is? 

Chief BURBANK. I could not tell you off the top of my head, absolutely not. I apologize. 

Mr. GALLEGLY. Okay. But it is reasonable to think that when you do not even give a guy a $20 fine for drunk driving or a bond, that 

there is a chance he may not return. 

Chief BURBANK. That is true for any offense, yes. 

Mr. GALLEGLY. That is true. That is another issue maybe for another day. 

Ms. Vaughan, in Fiscal Year 2011, ICE claimed to remove 35,927 

illegal immigrants who had been convicted of drunk driving. If this 

is the case, why would we need the bill, and do you believe this 

number is accurate? 

Ms. VAUGHAN. Well, I assume that it is accurate. ICE, you know, 

has put that statistic out there, and that sounds like a lot. It is 

about 9 percent of the removals for last year. But what I noticed 

when I went through the statistics that I was able to obtain from 

the law enforcement agencies that are able to track the crimes of 

the illegal aliens that they refer to ICE, that they were reporting 

higher percentages of their illegal alien caseload that were drunk 

drivers. So, I started to wonder why would there be that discrepancy, and there could be a lot of reasons for it. 

But based on those statistics and based on what I was hearing 

from some of these agencies and their experiences, there seemed to 

be a lot of people falling between the cracks. And this often has to 

do with the message that ICE agents in the field seem to have gotten, that they are to wait for a conviction before they are able to 

act on immigration violations. And the problem is that so many of 

these drunk driving offenders never get to the conviction stage because they abscond before that, just as the case with Mr. Chavez 

in Chicago. 

54 

So, there is a noticeable discrepancy between what local agencies 

are seeing and what ICE is actually doing. 

Mr. GALLEGLY. Thank you, Ms. Vaughan. Can I go back to the 

chief again very quickly? When you do this background check, if a 

person had a prior drunk driving arrest in your jurisdiction, would 

he still have been caught and released? 

Chief BURBANK. No, absolutely not. Prior convictions for DUI enhances the penalty associated with that, and then that would 

move—— 

Mr. GALLEGLY. So, they would go to be booked, and it would not 

be just a citation. 

Chief BURBANK. That is correct. 

Mr. GALLEGLY. Mr. McCann, and I read your testimony. But I 

just want to bring this up to date. It is my understanding that 

when Mr. Chavez left custody, he just walked away and did not appear for any further court or sentencing. Is that not correct? 

Mr. MCCANN. No, he did not appear. No. 

Mr. GALLEGLY. So, is there still a warrant out for his arrest? 

Mr. MCCANN. The FBI issued a warrant, and included in the 

warrant is extradition, which I guess is harder—— 

Mr. GALLEGLY. It is pretty hard to extradite if you cannot catch 

him. 

Mr. MCCANN. That is right. 

Mr. GALLEGLY. Thank you very much, and I thank all the witnesses. I would yield to the gentlelady from California. 

Ms. LOFGREN. Mr. Chairman, I understand that Mr. Pierluisi has 

another obligation. I would like to let him ask his questions first, 

if I may. 

Mr. PIERLUISI. Thank you, Mr. Chairman. Thank you so much, 

Ranking Member. 

I want to begin by addressing Mr. McCann directly. Mr. McCann, 

I thank you for your testimony today. I am profoundly sorry for 

your loss. I lost my brother my own brother in a terrible, and that 

pain never goes away. And I respect and admire you for your efforts to honor your brother’s legacy and to ensure that other families do not suffer what you and your family have no doubt endured. 

I must tell you that I do have serious constitutional and public 

policy concerns about the bill we are discussing today. But I do not 

want you to think for a single moment that my opposition is in any 

sense an effort on my part to diminish what you have gone 

through. 

What happened to your brother and what happened to Scott 

Gardner were profound tragedies, and, more than that, they were 

crimes. But just as there is an old saying among judges that hard 

cases make bad law, it is also sometimes the case that terrible 

events lead to legislative overreach. 

Tragedies lead to bills that go too far and that are too broad. 

They lead to bills in a well-intentioned effort to address particular 

injustice, but then give rise to a different set of injustices. 

I think that is clearly the case we have here today. So, let me 

pose a few questions. 

Under this bill, when a State or local law enforcement officer apprehends an individual for a DWI, if that officer has a reasonable 

ground to believe that the individual is an alien, then the officer 

55 

would be required to run an immigration check to determine if that 

individual is unlawfully present in the United States. 

There are so many legal and policy problems here. Among them, 

the unambiguous and potentially broad definition of ‘‘apprehend,’’ 

the highly subjective reasonable grounds standard, and the categorical nature of the mandate that local officials are required to 

obey, regardless of the circumstances. 

Sheriff Jenkins, if this bill becomes law and you are training 

your officers in Frederick County to implement it, what specific factors would you advise them to consider when making the determination as to whether there is reasonable ground to believe that 

an individual who has been pulled over for a possible DWI is an 

undocumented immigrant? Their accent? Their clothing? Their skin 

color? If they have a foreign-sounding name? If they work in a particular job or not? Their behavior? What behavior? 

I think it is a colossal understatement to say this bill would invite racial profiling on the part of local law enforcement. I think 

it guarantees racial profiling and makes a mockery of the constitutional principle of equal protection under the law. 

Sheriff Jenkins, tell me why I am wrong. 

Sheriff JENKINS. First of all, with all due respect, everything we 

talk about under our current programs are after the arrest is 

made. They are into our facility for central booking. That individual is brought, regardless of ethnicity, race, gender. That individual is brought into central booking. They are charged and 

booked on the local charges. As a part of that process, the intake 

process, they are asked a series of questions. Every single individual are asked two specific questions: where were you born and 

what country are you a citizen of? Now, depending on that answer 

triggers a status check under our current 287 program. It is that 

simple, sir. 

Mr. PIERLUISI. Mr. Chairman, I would like to allow Sheriff Burbank to comment on the answer, if you may. I am running out of 

time here. I will just note that the bill does not provide for waiting 

for an arrest to do everything else that local law enforcement personnel would have to do, by the way. It is not drafted that way. 

I see that that is your policy in Frederick County, but that is not 

what this bill provides for. 

But I would like to hear from Sheriff Burbank, if the Chairman 

allows it. 

Mr. GALLEGLY. Yes, Chief. 

Chief BURBANK. Thank you very much. You are absolutely correct. The law provides for prior to arrest. It already exists when 

you talk about Secure Communities and some of those other things, 

the checking that takes place in a detention facility. This actually 

directs officers out in the field to take this action, and, thus, altering the way that they proceed with the stop. 

And when it gets right down to it, I mean, honestly, sir, if you 

and I are subject to the same scrutiny, nobody is going to ask me 

if I am in the country legally, but you are going to get that question. And that is where the bias is interjected. When do we ask 

that question? And if it is different than how I would be treated 

on the street, that is where the bias is interjected, because it is not 

based on behavior, it is based solely on what you look like. 

56 

Mr. PIERLUISI. Thank you so much. 

Mr. GALLEGLY. Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I feel like I should go back to my 10th Amendment routine here. 

Matter of fact, I think I will just read it one more time so that you 

constitutional authorities will be able to reason with me. ‘‘Powers 

not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States, respectively, or 

to the people.’’ And this means that the Federal system cannot assign Federal responsibilities to local law enforcement. And here is 

where we get into some problems, Sheriff. 

In 3808, we say that if a State or local law enforcement officer 

apprehends an individual for an offense described in the subsection, and the officer has reasonable ground to believe that the 

individual is an alien, uh-oh. That is a Federal responsibility. That 

is why when you were telling our colleague about what happens 

after they have been booked, we are talking about what happens 

that caused them to get booked. And in this instance, it is that 

somebody had reasonable ground to believe the individual is an 

alien, and that raises a whole host of problems. 

And so, all I am pointing out to you is that we have a constitutional infirmity that I do not think is correctable. Does anybody 

else want to share their view on this? Then I presume you all agree 

with me? Yes, ma’am. 

Ms. VAUGHAN. In my experience from doing training of law enforcement officials and interacting with them, and I would leave it 

to the two law enforcement officers here at this table to correct me 

if I am wrong. But I have never gotten the sense that local law enforcement agencies see this bright line between State and Federal 

responsibilities, that most local law enforcement agencies that I 

have encountered feel it is their duty and responsibility to work 

closely with Federal law enforcement agencies in getting the job 

done on behalf of public safety. And they are more than willing to 

do that, and do not see it as a burden because they see the benefits 

of that for their community. 

Mr. CONYERS. Yeah, but this requires the observation of some 

kind of profiling going on. You have to think that somebody is an 

alien, and as was pointed out, some people look like they might be 

an alien, and some people look less like they might be an alien. So, 

there is the problem. 

And, you know, we have been through this with—it would be different if we were talking about a case that had never happened. 

But the Supreme Court struck down this provision, and of all people, we had Supreme Court Justice Scalia that wrote the opinion, 

a rather conservative member of the Court saying that how people 

look and sound and act will require under this bill that they get 

additional scrutiny. They can be detained by State and local police 

to determine if they are, in fact, aliens or in sync with immigration 

law. 

So, that is a constitutional infirmity that would, I think, require 

the Court to do exactly what they have done in previous cases. 

I thank the Chairman for his time. 

57 

Mr. GALLEGLY. All right. I thank our Chairman emeritus here. 

And with that, I would yield to the gentlelady from California, Ms. 

Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I would like to ask unanimous consent to put several statements 

in the record. The first is a statement from immigration and constitutional law professors regarding Printz v. United States, and 

the unconstitutionality of H.R. 3808, a statement from the Leadership Conference on Civil and Human Rights and the Rights Working Group on racial profiling, a statement from the ACLU, a statement from the American Immigration Lawyers Association, a statement from the national State and Local advocates for survivors of 

domestic violence and sexual assault, and a statement from the National Immigration Project of the National Lawyers Guild, the Immigrant Defense Project, the Immigrant Legal Resource Center, 

the Washington State Defenders Association, and the Immigration 

Project, all in opposition to the bill. 

Mr. GALLEGLY. Without objection. 

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Ms. LOFGREN. Chief Burbank, Ms. Vaughan in her testimony indicated that she had, I do not want to misstate it, but I think it 

is actually correct. In her research, she had not come across evidence that cooperation with ICE had an impact on community policing. 

Do you share that view? Do you have research that shows that 

there is an impact on community policing or studies that show that 

this might have an impact? 

Chief BURBANK. If I can answer that in two ways. 

Ms. LOFGREN. Of course. Whatever is true. 

Chief BURBANK. This year the major city chiefs, of which I am 

the vice president of the organization, reiterated their 9-point position on this that stated that immigration is a Federal issue, that 

local law enforcement should not be coopted as immigrant agents. 

And it was very clear and a very unanimous position for that organization. And that represents the 70 largest cities in the United 

States and Canada that came out with that statement. And so, it 

is not a matter of cooperation. It is a matter that we should not 

be in that position or that role. 

As the immigration debate heated up locally in the State of 

Utah, I actually joined with the Consortium for Police Leadership 

and Equity and conducted a study in the State of Utah that asked 

specifically would people be less inclined to cooperate with police 

if, in fact, they were viewed as immigration agents. And, yes, in 

fact, not only did undocumented individual say they were less likely, Latino individuals said they were less likely, but, in fact, our 

overall population of Caucasians said they were less likely because 

they viewed us as less legitimate if we were engaged in immigration enforcement. 

Ms. LOFGREN. Well, that that is very interesting. I wonder if, you 

know, after this hearing if we could get a copy of that study. I 

think that would useful, too. 

Chief BURBANK. In my written statement, I actually included 

that study. 

Ms. LOFGREN. Okay. All right. I did not see that. Well, I missed 

it then. 

I would like to note also, Ms. Vaughan, I assume that you favor 

the immigration enforcement priorities, that we should set priorities, and that one of those priorities ought to be drunk driving. Is 

that correct? 

Ms. VAUGHAN. Well, that should be up to ICE. 

Ms. LOFGREN. Okay. I would like to ask unanimous consent, Mr. 

Chairman, to include in the record the guidance from ICE. 

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Ms. LOFGREN. And it says the following are enforcement priorities for the Department of Homeland Security, and it includes obviously terrorism and national security, but also driving under the 

influence of alcohol or drugs as a priority for enforcement for the 

Department of Homeland Security. 

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ing under the influence of liquor. That is the most common reason 

for somebody being held in ICE custody. And that certainly is not 

to say that, you know, there are not people, both U.S. citizens, undocumented aliens, legal aliens, who are out driving drunk, and 

that is a terrible thing, and it is a dangerous thing. And people get 

hurt, and people get killed. And there is just no excuse for it. But 

the question is whether this bill is a remedy that is going to improve the situation. 

And here is the concern that I have. We have a lot of ways that 

people can be harmed by criminal intent. Driving under the influence is a crime in every State. But if we, with the best of intentions, take actions that actually have the impact of lessening collaboration on a community policing basis with our law enforcement 

officers for other crimes, we are going to end up actually increasing 

the danger that we face. 

Now, Chief, the concern that has been expressed about racial 

profiling is a serious one, and as, I think, Mr. Pierluisi, who is the 

former attorney general of Puerto Rico, mentioned, what the bill 

actually does require its pre-textual. The State law enforcement officer who apprehends an individual is then required to verify. And 

apprehend, I think, would be anything. It could be, you know, we 

had these State-wide checkpoints in the holiday season. It could be 

something like that. 

The impact of having to make kind of a racially-based distinction 

in the circumstances outlined in the bill, do you think that would 

have an adverse impact on law enforcement generally, in your experience as a chief? 

Chief BURBANK. Absolutely in my experience because we have no 

way to determine who is undocumented and who is a citizen. And 

so, the question then becomes is who do you ask? Who do you question about their citizenship status? And as I pointed out, they are 

not going to question from my appearance, but anyone who has a 

Hispanic surname or anything else is going to receive those questions. 

And so, bias is interjected into that stop, right? We have officers 

who are making decisions from that point forward based on what 

someone looks like, not their behavior. We should always profile for 

criminal behavior, articulable things that this is what I see that 

leads me to believe that they are engaged in criminal activity. Appearance, race, ethnicity, gender, what does your family history 

look like, is not indicative of criminal behavior. 

Ms. LOFGREN. Thank you. Mr. Chairman, my time has expired. 

Mr. GALLEGLY. The gentleman from Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. I have to start with thanking the witnesses for your testimony here. And I was just absorbing 

some of the concepts that are so foreign to the upbringing that I 

had in a law enforcement family. It would not have occurred to the 

law enforcement officers whom I grew up with, let us just say, or 

dare I say 50 years ago, that they would encounter someone who 

is obviously breaking the law and somehow shrug their shoulders 

and walk away because of some kind of discretion. The law was the 

law, and you either enforce the law. And you also had the opportunity to go and advocate to your legislature to change the law. 

110 

And so, I look at this discussion that we have and the pain that 

Mr. McCann has gone through, and thousands and thousands of 

other Americans, individuals and families, who have lost loved one 

in preventable deaths. And I know that you cannot quantify the 

value of a life, but I recall a study that I read that was done by 

the Justice Department in about 1992 that put a monetary value 

on violent crime, that being murder, rape. I remember rape was set 

at $84,000. I do know anyone that would even think of submitting 

for such a price, but it was a loss in income, and it was loss of income, medical, and a quantifiable amount for some pain and suffering. The deaths to murder were over a million dollars even then. 

And so, I am thinking there must be somehow a rationale that 

has taken place, that is that we cannot afford all of the officers, 

and all of the prison beds, and all of the judges to enforce our immigration laws 100 percent because it is too costly. I recall a study 

done by the Rand Corporation, 1995 or so, that calculated that a 

criminal turned loose on the street cost $18,000 a year to incarcerate, and the cost to society if you turned him loose was $444,000 

a year. 

So, we do have some ways to quantify this, regardless of the infinite value of a single human life. And I would wonder if anybody 

would be a volunteer to having looked at any of that kind of data 

and try to come to some kind of a conclusion as to what we might 

have to reallocate for resources so that we could enforce the law 

100 percent all the time, so that our law enforcement officers, when 

they encounter somebody that is unlawfully present in the United 

States can turn them over to ICE, and ICE can be there reliably 

to pick them up and put them back in the condition that they were 

in before they committed the crime, or punish them appropriately 

and then do so. 

Has anyone looked at it from that perspective? Ms. Vaughan? 

Ms. VAUGHAN. Not specifically using that methodology, but I 

think there is also an assumption that some people make that, you 

know, and I have heard it said a lot, well, if we are forced to enforce immigration laws against these so-called minor criminals, 

well then, we cannot deal with the ones that everyone considers to 

be the more serious criminals. And that is really a false choice that 

is set up, because ICE, in its ability to set priorities, also has a 

range of different options available to it for how it deals with people. 

And what we have been noticing in our research is that the 

choices they are making and how they process people are actually 

stifling their ability to increase the number of removals and deal 

with all of the people that they encounter. So, you know, there is 

no, like, finite number. There is no limit on the number of people 

that they can necessarily remove in a year, like it is set at 400,000 

and we cannot do anymore unless we have more money. There are 

ways to do more with the same amount of money that they are not 

choosing to do. 

Mr. KING. Ms. Vaughan, you understand what troubles me here, 

I think, and that I am watching us walk backwards with the rule 

of law Administration by Administration, year by year, administrative amnesty by administrative amnesty, 300,000 people that are 

adjudicated for deportation and the Administration then announces 

111 

that they are going to have the manpower or the staff power to 

scour through all of those applications and try to find some people 

that they can unadjudicate for deportation. 

And so, we have got administrative amnesty that is established. 

And now, the discretionary enforcement that seems to be more of 

our public vernacular than we have ever had before. And I am 

watching as in, well, there is a case coming before the Supreme 

Court this month, Arizona’s SB 1070. It looks to me that the attorney general has taken a position that he is going to contribute not 

just the sanctuary city, as I think we are well aware of, but a sanctuary State that we know that Utah has at least stepped into that 

in some degree, but now a de facto sanctuary nation. 

And I just listened to the hearing here, and I am troubled by the 

broken hearts, and I am troubled by the narrowness of this bill, 

which I think is justifiable and has merit. But I am even more 

troubled by the idea that we can just wave our hand away and disregard hundreds of thousands of violations of criminal law in the 

United States, and discuss it as if it happens to be somehow a discretionary decision that is made by things that are out of our 

hands. 

Congress makes the laws, and the executive branch’s job is to 

execute those laws, do so faithfully. It is the President’s oath; it is 

the oath of many of his subordinates in the executive branch. 

And so, I encourage the bill, Mr. Chairman, and yet I think that 

we have to go a lot further and a lot faster if we are going to restore the rule of law in America. 

Thank you, and I yield back. 

Mr. GALLEGLY. I thank the gentleman. I thank all our panelists 

for being here. I would just take the Chair’s prerogative, and like 

to ask the chief one more question because I did cut myself a little 

short at the beginning. 

I understand what your protocol is for making an arrest, and 

whether you book or whether you give a cite, or whatever. 

Now, if your patrol person makes a stop based on erratic driving 

and has concern that the driver may be somewhat incapacitated for 

drinking or other things, and you make a determination of field sobriety test, I assume the first thing you do is ask for a license and 

registration. Is that correct? 

Chief BURBANK. That is correct. 

Mr. GALLEGLY. Now, in the event that the driver has no registration and has no driver’s license, do you tow the vehicle and impound it? 

Chief BURBANK. Most often, yes. 

Mr. GALLEGLY. Okay. And when the person has no license or no 

registration and you do determine that he is intoxicated; however, 

he has no priors, would there be anything more than just a citation 

at that time when there is no registration, no driver’s license, no 

proof of insurance, and DUI, in most cases? 

Chief BURBANK. No, there would not be more than a citation. 

Mr. GALLEGLY. It would be a citation. Now, in the course, would 

you ever ask a person why do you not have a driver’s license? 

Chief BURBANK. Certainly that can be asked, yes. 

Mr. GALLEGLY. And if he says or she says, well, I do not have 

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try, then you realize clearly that the person has admitted committing a crime. Would you then notify ICE, or would you just, again, 

give the citation and expect that he would not appear in court? 

Chief BURBANK. Well, the long answer to that is in the State of 

Utah, if you are undocumented, then that is all it is. It is not a 

criminal violation; it is a civil violation, and we do not enforce civil 

law. There is no criminal penalty associated with being in the State 

of Utah undocumented. You can simply be detained and deported. 

So, it is not a matter of a violation of a law; it is violation of civil 

law, which local law enforcement—— 

Mr. GALLEGLY. If you are aware that it is a violation of Federal, 

you are not a Federal law enforcement officer, you do not feel any 

responsibility—— 

Ms. LOFGREN. Would the gentleman yield, because that is actually incorrect. Mere presence without documentation is not a criminal offense under the Federal law. It is a civil offense. 

Mr. GALLEGLY. But when someone says I have entered this country illegally, with all due respect, Ms. Lofgren, that is a Federal 

crime. 

Ms. LOFGREN. Well, we could have a long argument, but the discussion was that I do not have my papers. Not having your papers 

is not a criminal offense under the Federal law. 

Mr. GALLEGLY. If he volunteered that he was illegally in the 

country, that was the question I asked of Chief Burbank. 

Ms. LOFGREN. That is correct, and being illegally in the country 

is not a criminal law offense. It is a civil law offense. 

Chief BURBANK. If there was no criminal warrant on the NCI 

check that was conducted—— 

Mr. GALLEGLY. Well, perhaps that explains some of the problems 

we have in this country. 

With that, I would yield back. I thank all the witnesses today for 

your testimony. And, Sheriff and Chief, we appreciate what you do 

to try to make our respective jurisdictions a safer place to live. 

The Subcommittee stands adjourned. 

[Whereupon, at 4:20 p.m., the Subcommittee was adjourned.] 

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125 


73213J-3.eps
126 


73213J-4.eps
127 


73213J-5.eps
128 


73213J-6.eps
129 


73213J-7.eps
130 


73213J-8.eps
131 


73213J-9.eps
132 


73213J-10.eps
133 


73213J-11.eps
134 


73213J-12.eps
135 


73213J-13.eps
136 


73213J-14.eps
137 


73213J-15.eps
138 


73213J-16.eps
139 


73213J-17.eps
140 


73213J-18.eps
141 


73213J-19.eps
142 


73213J-20.eps
143 


73213J-21.eps
144 


73213J-22.eps
145 


73213J-23.eps
146 


73213J-24.eps
147 


73213J-25.eps
148 


73213J-26.eps
149 


73213K-1.eps
150 


73213K-2.eps
151 


73213K-3.eps
152 


73213L-1.eps
153 

f 


73213L-2.eps
154 


73213M-1.eps
155 


73213M-2.eps
156 


73213M-3.eps
157 


73213M-4.eps
158 


73213M-5.eps
159 


73213M-6.eps
160 


73213M-7.eps
161 


73213M-8.eps
162 


73213M-9.eps
163 


73213M-10.eps
164 


73213M-11.eps
165 


73213M-12.eps
166 


73213M-13.eps
167 


73213M-14.eps
168 


73213M-15.eps
169 


73213M-16.eps
170 


73213M-17.eps
171 

Æ 


73213M-18.eps