U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

80–066 PDF 2013

RELEASE OF CRIMINAL DETAINEES BY U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT: POLICY OR POLITICS? 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MARCH 19, 2013 

Serial No. 113–5 

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 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

KEITH ROTHFUS, Pennsylvania 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

MARCH 19, 2013 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESS 

The Honorable John Morton, Director, U.S. Immigration and Customs Enforcement 

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

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

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 ................................................................................................... 4 

Prepared Statement of the Honorable Trey Gowdy, a Representative in Congress from the State of South Carolina, and Member, Committee on the 

Judiciary ............................................................................................................... 5 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 6 

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 8 

Material submitted by the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 21 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 41

Material submitted by the Honorable Trey Gowdy, a Representative in Congress from the State of South Carolina, and Member, Committee on the 

Judiciary ............................................................................................................... 47 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 60

Material submitted by the Honorable Tom Marino, a Representative in Congress from the State of Pennsylvania, and Member, Committee on the 

Judiciary ............................................................................................................... 131 

Material submitted by the Honorable Hakeem Jeffries, a Representative in 

Congress from the State of New York, and Member, Committee on the 

Judiciary ............................................................................................................... 136 

Material submitted by the Honorable Ted Poe, a Representative in Congress 

from the State of Texas, and Member, Committee on the Judiciary ............... 147 
Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Doug Collins, a Representative in Congress from the State of Georgia, and Member, Committee on the Judiciary .. 152 
(1) 

RELEASE OF CRIMINAL DETAINEES BY U.S. 

IMMIGRATION AND CUSTOMS ENFORCEMENT: POLICY OR POLITICS? 

TUESDAY, MARCH 19, 2013 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 1:10 p.m., in room 2141, 

Rayburn Office Building, the Honorable Bob Goodlatte (Chairman 

of the Committee) presiding. 

Present: Representatives Goodlatte, Coble, Smith, Bachus, Issa, 

Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz, Marino, 

Gowdy, Labrador, Holding, DeSantis, Rothfus, Conyers, Scott, 

Watt, Lofgren, Jackson Lee, Johnson, Gutierrez, Bass, Richmond, 

DelBene, Garcia, and Jeffries. 

Staff present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Dimple 

Shah, Counsel; Kelsey Deterding, Clerk; (Minority) Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown, Parliamentarian; and Tom Jawetz, Counsel. 

Mr. GOODLATTE. The Judiciary Committee will come to order. 

And without objection, the Chair is authorized to declare recesses 

of the Committee at any time. 

I want to take the opportunity of this full Committee gathering 

to make Members aware of our new policy regarding participation 

in Subcommittee hearings. At the beginning of the Congress, I was 

asked whether Members who are not a Member of a Subcommittee 

would be allowed to participate in Subcommittee hearings. After 

giving it some thought, I have come up with what I think to be a 

reasonable solution that will allow our Members some level of participation without overburdening the Subcommittees. 

A Member who is not a Member of a Subcommittee but is a 

Member of the full Committee may attend a hearing and sit on the 

dais. That Member may also ask questions of the witnesses but 

only if yielded time by an actual Member of the Subcommittee who 

is present at the hearing. I would ask that Members who intend 

to participate in this fashion let the majority staff know as far in 

advance of the hearing as possible so that we may prepare accordingly. And it will remain the policy of the Committee that we do 
2 

not allow Members to participate in our hearings who are not 

Members of the Judiciary Committee. 

We welcome everyone to today’s hearing on the ‘‘Release of 

Criminal Detainees by the U.S. Immigration and Customs Enforcement: Policy or Politics?’’ 

And I will recognize myself for an opening statement. 

On March 1, the sequestration deadline required that certain 

Federal agencies and departments to reduce their budget to avoid 

violating mandated spending caps established under the Budget 

Control Act of 2011. The Office of Management and Budget told 

them to ‘‘reduce risks and minimize impacts on the Agency’s core 

mission in service of the American people.’’ DHS instead politicized 

sequestration by deciding to release detained criminal and illegal 

immigrants that are a priority for removal from the United States. 

This decision directly contradicts ICE’s mission to promote homeland security and public safety through the enforcement of our immigration laws. 

Those released by ICE include: illegal immigrants convicted of or 

charged with theft, identity theft, forgery, and simple assault; illegal immigrants who had been arrested and charged with crimes because, under policy guidelines issued by the Director, illegal immigrants who are charged with a crime are not considered to be dangerous or criminal until they have been convicted; repeat immigration offenders, despite memos issued by the Director that these are 

enforcement priorities; and recent border-crossers, also one of the 

Director’s enforcement priorities. 

Among those released was an illegal criminal immigrant who 

spent nearly 3 years in a detention center in Georgia. According to 

the New York Times, this illegal immigrant became an illegal immigrant when he overstayed a visa in 1991. He was detained in 

2010 when he violated probation for a conviction in 2005 of assault, 

battery, and child abuse, charges that sprang from domestic disputes with his ex-wife. He was transferred to ICE custody and has 

been contesting an existing order of deportation for over 3 years 

now. 

During oral testimony at House Appropriations last week, Director Morton confirmed that the Agency released 2,228 detainees 

from detention. Of these, 629 were criminals and 1,599 were noncriminals. 

However, Mr. Morton did not provide a breakdown of the noncriminals. We do not know how many were charged with crimes 

but not yet convicted, are absconders, had existing orders of removal, or are criminal gang members. Additionally, Mr. Morton did 

not think that any of the individuals released were national security concerns. 

Simultaneously, DHS claimed that all the released illegal immigrants are at low priorities and have not committed serious crimes. 

This is inconsistent with the fact that both Secretary Napolitano 

and Director Morton have repeatedly indicated that the Agency detains only ‘‘the worst of the worst illegal immigrants in light of 

their inability to detain, deport, and remove all the illegal immigrants the Agency encounters based on a lack of financial resources.’’ 
3 

Irresponsible decisions to release detained illegal immigrants unreasonably and unnecessarily put the public at risk. The question 

remains: Are these individuals being released based on legitimate 

budgetary concerns or because sequestration gave the Obama administration a political reason to release deportable aliens? Surely 

other budgetary considerations could have come first such as cutting expenditures for conferences, detailees, or international travel. 

Releasing criminal and illegal immigrants on their own recognizance provides them little incentive to report to authorities and 

subject themselves to deportation. As we have learned from hard 

experience, many of them will simply abscond and become fugitives. Furthermore, recidivism rates are extremely high for any incarcerated population. The Director has already indicated that ICE 

has had to re-apprehend 4 out of the 10 of those criminal immigrants released for more severe crimes. To make matters worse, 

many of these individuals released lack the money, family, support, 

and the ability to get a job, not just because they are present in 

violation of the law, but because they have a criminal record. This 

release is a recipe for disaster that is irresponsible and unjustified. 

Ultimately, these nonsensical actions demonstrate the inability 

and lack of desire on behalf of the Administration to enforce the 

law even against illegal immigrants convicted of serious crimes. To 

make matters worse, they undermine the good will necessary to develop a common sense, step-by-step approach to improving our immigration laws. 

At this time, it is my pleasure to recognize the Ranking Member 

of the Committee, the gentleman from Michigan, Mr. Conyers, for 

his opening statement. 

Mr. CONYERS. Thank you, Chairman Goodlatte. 

Ladies and gentlemen of the Committee, the title of today’s hearing, the ‘‘Release of Criminal Detainees by U.S. Immigration and 

Customs Enforcement: Policy or Politics?’’, is really somewhat misleading. 

First, we have learned at a recent hearing before the Homeland 

Security Appropriations Subcommittee that 72 percent of the people released had no criminal record at all. Another 21 percent had 

convictions for one or two misdemeanors only. Unless Director Morton, whom we welcome here today, tells us something different, 

this means that 93 percent of the people released by ICE were noncriminals or low, low level offenders. 

Second, the title of the hearing asks whether this was motivated 

by policy or politics. From my investigations, I do not believe it was 

either. 

I do not believe it was policy because we have no reason to think 

that someone sat down and decided to release thousands of detainees without reason. Remember, this Agency over the past 5 years 

has consistently set deportation and detention records. 

I also do not believe this is about politics. The President’s top 

legislative priority is enacting comprehensive immigration reform. 

I share the President’s goal. The American people share the President’s goal. And I know a growing majority of Members of Congress 

support that goal. This discussion does not advance that goal. So 

I do not see how it could be motivated by politics. 
4 

So why did the Agency release more than 2,000 people from custody in February? Based on what we have learned, it seems that 

it was motivated by overzealous use of detention in late 2012, combined with poor communication between the people in charge of 

ICE’s budget and the people in charge of its enforcement operations. 

Why do I say that? Because ICE is funded by appropriations to 

detain an average of 34,000 people per day over a fiscal year. That 

comes out at a daily cost of about $122 per bed. But from October 

through December of 2012, ICE regularly detained well over 35,000 

people per day. ICE nearly hit 37,000 detainees on some days. Not 

only did this mean ICE was paying more for detention beds but it 

was paying more overtime, more fuel costs for additional transportation, and more of everything else required for detention. These 

secondary costs brought the real cost of detention closer to $164 per 

person per day and explain why ICE was maybe $100 million in 

the red. 

ICE tried to put the brakes on all of that spending when its chief 

financial officer figured out that the Agency was burning through 

its money faster than its budget would allow. In early January, the 

Agency was on pace to run out of money for custody operations by 

March 9, more than 18 days before the continuing resolution expired on March 27. ICE seems to have had no choice but to release 

some detainees to bring its spending in check. 

And so I would like to put this in the record that we need to really move with great care in terms of the assertions that were made 

to me in this misleading title. 

And I thank the Chairman for allowing me to make this statement. 

Mr. GOODLATTE. I thank the gentleman from Michigan, and 

without objection, the remainder of his statement and the opening 

statements of all other Members will be made a part of the record. 

[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 

The title of today’s hearing, the—‘‘Release of Criminal Detainees by U.S. Immigration and Customs Enforcement: Policy or Politics?’’, is somewhat misleading. 

First, we learned at a recent hearing before the Homeland Security Appropriations Subcommittee that 72% of the people released had no criminal record at all. 

Another 21% had convictions for one or two misdemeanors only. 

Unless Director Morton tells us something different today, that means 93% of the 

people released by ICE were non-criminals or low-level offenders. 

Second, the title of the hearing asks whether this was motivated by policy or politics, but I don’t believe it was either. 

I don’t believe it was policy, because we have no reason to think someone sat 

down and decided to release thousands of detainees without a reason. Remember: 

this agency over the past 5 years has consistently set deportation and detention 

records. 

I also don’t believe this is about politics. The President’s top legislative priority 

is enacting a comprehensive immigration reform. I share the President’s goal. The 

American people share the President’s goal. And I know a growing majority of Members of Congress support that goal. This discussion does not advance that goal, so 

I don’t see how it could be motivated by politics. 

So why did the agency release more than 2,000 people from custody in February? 

Based on what we have learned, it seems this was motivated by the over-zealous 

use of detention in late 2012 combined with poor communication between the people 

in charge of ICE’s budget and the people in charge of its enforcement operations. 
5 

Why do I say that? Because ICE is funded by appropriations to detain an average 

of 34,000 people per day over a fiscal year. That comes at a daily cost of about $122 

per bed. But from October through December of 2012, ICE regularly detained well 

over 35,000 people per day. ICE nearly hit 37,000 detainees on some days. 

Not only did this mean ICE was paying for more detention beds, but it was paying 

for more overtime, more fuel costs for additional transportation, and more of everything else required for detention. Those secondary costs bring the real cost of detention closer to $164 per person per day and explain why ICE was maybe $100 million 

in the red. 

ICE tried to put the brakes on all of that spending when its Chief Financial Officer figured out that the agency was burning through its money faster than its budget would allow. In early January, the agency was on pace to run out of money for 

Custody Operations by March 9—more than 18 days before the Continuing Resolution expires on March 27. ICE seems to have had no choice but to release some detainees to bring its spending in check. 

Third, I want to remind everyone that Congress funds cost-effective alternatives 

to detention for a reason. We should place good candidates into alternatives to detention whenever possible and not just when we are forced to do so by budgetary 

constraints. 

It should tell us something that in a three-week period, Director Morton identified 

more than 2,000 detainees who would not pose any danger to the public if they were 

released. 

Not one of these people was required by law to be in detention. And, 93% were 

non-criminals or low-level offenders who probably never served prison time for their 

criminal convictions. We need to ask ourselves what they were doing in immigration 

detention in the first place if cost-effective alternatives are at our disposal. 

I hope Director Morton will explain whether it makes sense, from a law enforcement perspective or from the perspective of fiscal responsibility, to require him to 

keep a certain number of people in custody on any given day. 

• We don’t require the Bureau of Prisons to maintain a minimum average daily 

population. 

• We don’t require the U.S. Marshals Service to maintain a minimum average 

daily population. 

• And I have yet to find a state or local law enforcement agency that sets such 

requirements. 

It makes no sense that we would require ICE to maintain a minimum average 

daily population. 

I hope we can reconsider this apparent mandate in the future and I thank Director Morton for his testimony today. 

[The prepared statement of Mr. Gowdy follows:] 

Prepared Statement of the Honorable Trey Gowdy, a Representative in 

Congress from the State of South Carolina, and Member, Committee on 

the Judiciary 

Mr. Chairman, thank you for calling this hearing. There are several things that 

have people vexed. This Administration claims it only detains the ‘‘worst of the 

worst.’’ Recently, this Administration released some detainees from detention claiming it did not have adequate funding to exercise the preeminent function of government, which is public safety. 

So, initially we have to examine that oft-repeated Administration talking point 

that it only detains the ‘‘worst of the worst.’’ If that is true, it necessarily follows 

that some of those ‘‘worst of the worst’’ were recently released. 

Just so we are clear, the Administration claims it released hundreds of detainees 

when in reality the Administration released thousands of detainees. Some of those 

detainees released were Level 1 offenders, which means they were aggravated felons. Many of those released were Level II detainees, which means they were repeated offenders. 

So against the backdrop of knowing that some ‘‘worst of the worst’’ detainees were 

released, including aggravated felons we must examine who made the decision to 

release these detainees. Did Secretary Napolitano make this decision? Did she know 

about the decision ahead of time? Did she set the parameters of a danger assessment to decide who should be released and who should not be released? If she didn’t 
6 

make the decision herself precisely what kind of decision is important enough that 

she would actually be aware of it. If releasing thousands of detainees isn’t worth 

troubling her with, what is? 

Why were the releases ordered in the first place? Secretary Napolitano contends 

she found herself between ‘‘a rock and hard place’’ so the only alternative was to 

release thousands of detainees. Frankly, Mr. Chairman, that explanation strains 

credibility. 

ICE was funded at the level to maintain 34,000 beds, which is enough to avoid this recent detainee release. An additional $240 million was available that could 

have been used to detain these aggravated felons and repeated offenders that were 

released. ICE could have asked for permission to move money from less vital services to more vital services. For instance, did ICE consider reducing funding for 

training, for travel, for conferences, for printing, for promotional materials, for government vehicles? Those are not my suggestions Mr. Chairman. In the interest of 

giving credit where credit is due, those were recommendations from the President 

himself. 

Was releasing detainees really the only option at your disposal? Couldn’t cut anything else? Nowhere else to turn, nothing else to do, except release detainees from 

custody? 

I will tell you, Mr. Chairman, that it appears as if the decision to release detainees was a political determination rather than a monetary one. It appears as if the 

release of detainees was part of a sequester campaign that included the fictional firing of teachers, meat inspectors being laid off, the closing of the White House for 

tours and now the release of aggravated felons. This is a concerted, curious effort 

to persuade the public that nothing whatsoever could be cut in government. 

It would be advisable in the future Mr. Chairman if the time spent trying to persuade the public that mayhem was about to break loose had been spent figuring out 

how better to protect the public from mayhem that was previously detained. 

Today’s witness, Director John Morton explained, that some of those released 

were really low-risk detainees including those with drunk driving convictions, theft 

convictions, and ‘‘simple assault and battery’’ convictions. 

I appreciate Mr. Morton’s prior service as a prosecutor. I do. But I disagree with 

any assessment of low-risk that includes recidivists. 

For those of us that have had to explain to parents, or spouses or loved ones, how 

a recidivist drunk driver was allowed back on the street, back into a vehicle, back 

behind the wheel under the influence of drugs or alcohol only to drive drunk again 

and kill or seriously injure a member of the innocent motoring public. That isn’t low 

risk. 

Some of those released because of this public relations stunt gone wrong are going 

to reoffend. Some are going to abscond and fail to report for their removal hearing. 

There are going to be consequences for this decision and today we are going to find 

out who made this decision and why. Because public safety is the most important 

function government has. And it should never be jeopardized for political expediency. 

[The prepared statement of Ms. Lofgren follows:] 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in 

Congress from the State of California, and Member, Committee on the Judiciary 

We have all read the recent stories about ICE’s decision to release varying numbers of detainees from custody in a short period of time. As information began to 

percolate up from communities around the country, we have heard many different 

versions of what happened. 

Some stories suggested the detainees had already been granted bond by an Immigration Judge, but had been unable to come up with the necessary funds. Others 

said that thousands of detainees with criminal convictions–and some with gang 

ties–were released without any regard for public safety. 

Last week we learned from Director Morton that 2,228 detainees were released 

in February on account of budgetary constraints. 72% had no criminal history, and 

an additional 21% had misdemeanor convictions only. Director Morton testified then 

that to his knowledge none of the detainees posed a danger to the public or had 

gang ties. 

We also heard different stories regarding the budgetary constraints that led to the 

releases. The first explanation that came out had to do with the impending sequester. Secretary Napolitano recently testified before the Senate that sequestration 
7 

would mean a decrease in detention bed space. That explanation is certainly plausible. Across-the-board spending cuts that force us to take a thoughtless approach 

to our spending with undoubtedly lead to cuts that are imprecise. 

But as it turns out, that is not the whole story. Under the continuing resolution 

that expires later this month, ICE is funded at a level to sustain an average daily 

detainee population of 34,000. But months into the current fiscal year, with the sequester looming, and the expiration of the current CR on the horizon, ICE was exceeding its average daily population by more than 2,000 beds per day. This means 

ICE’s detention bed costs—as well as the secondary costs of paying officers, fuel 

charges, and the like—were outpacing the approved spending plan. 

ICE’s Enforcement and Removal Operations (ERO) was burning through its funds 

for custody operations at an unsustainable pace by early January. Without reducing 

costs or raiding other accounts for unobligated funds, ERO was looking at running 

out of money for custody operations 18 days before the end of the CR. 

So why didn’t ICE reprogram funds to cover the shortfall created by ERO’s overspending? Director Morton testified last week that doing so would have been like 

robbing Peter to pay Paul. Taking funds from another account—such as the money 

budgeted for Homeland Security Investigations—would have meant taking Special 

Agents off the streets and interfering with their criminal investigations. 

Faced with that reality, ICE officials decided on an approach in which they would 

identify detainees for release. These detainees should not be subject to mandatory 

detention, should not pose a danger to the public, and should be released on orders 

of supervision or into formal Alternatives to Detention programs. 

As ICE was already far surpassing the 34,000 detention-bed average, a temporary 

reduction in detainees would keep the agency on track to meet that average by the 

end of the current fiscal year. That is what ICE did. 

ERO’s detention efforts throughout the Fall and early Winter were setting new 

records and were entirely unsustainable in light of the CR—especially as the nowrealized threat of the sequester loomed. They had to reduce spending. 

Aside from these reductions, I propose that we spend some time this morning 

talking about the so-called ‘‘34,000 detention-bed mandate’’ that is a big reason for 

the controversy before us. As we know, our appropriations acts now require ICE to 

‘‘maintain a level of not less than 34,000 detention beds.’’ 

There is some disagreement about the exact meaning of this phrase. The agency 

and some appropriators believe this means that over an entire fiscal year, the average daily population in detention must be no lower than 34,000 beds. Other appropriators seem to believe this means that on any given day, ICE must have no fewer 

than 34,000 people in custody. 

Either way, both sides see it as a mandate to keep people in detention without 

regard to any other factors. To me, the requirement has always meant nothing more 

than that at a given time, 34,000 detention beds must be available for use by ICE 

should the agency need them. That is the clearest way to read the language itself, 

and it makes more sense than any other interpretation. 

From a law enforcement perspective—where detention decisions are based on 

need, not arbitrary mandates—that would make a lot more sense. The same is true 

if you were to think of it from the perspective of fiscal responsibility. I suppose that 

is why the Heritage Foundation encourages a much wider use of cost-effective alternatives to detention for appropriate candidates. 

Policy or politics? I don’t really think it was either. Based on what we now know, 

the releases were the product of poor budgetary practices combined with the kind 

of record-setting enforcement efforts that we have come to expect from ICE. 

Mr. ISSA. Mr. Chairman? 

Mr. GOODLATTE. Yes? 

Mr. ISSA. I would ask unanimous consent that along with the 

Ranking Member’s insertion, that the order of the Office of the 

President, the executive order of January 14, be placed in the 

record next to it. 

Mr. GOODLATTE. Without objection, it will be placed in the 

record. 

[The information referred to follows:] 
8 

M.\3-OJ 

EXECUTIVE: OFFICE OF THE PRESIDENT 

~lc£ OF "'~NAGE"'E T ", NO IIUoc;U 

W"ll .. ' ... "TO .... Il<:' ZOllO" 

January 14.2013 

MEMORANDUM FOR TilE I!! ADS OF EXECUTIVE DEPARTMENTS AND AGENCIES 

Jeffrey D. Zicrl!s t:..QJ:f 

Deputy Dirl'ClOr f~M:anngcmcnt FRO)'.": 

SUBJHT: Planning ior Uncenainty wilh Respect 10 Fiscal Year 2013 Hudgclary Resourcel 

In Ih~ coming months. e:<~lllive dcpurtmcnlls and agencies (ag~ucil'l) will wnfront 

~igniIiCIIH! utlccl'laimy regarding Ihc amQum Qfbudllclary rcsoun:cs available for the remainder 

Qflhe fiscal year. In p:lfticular, unless Congress IICIS to amend current law, the Prosidcnt is 

required 10 iSllm, II cqUcslI'llliQn order un March 1,2013, canceliog appro:<imatcly $85 billiun in 

budgetary !\.'SOuro.:s across the rederal Go~mmel1l. Further uncenainty is crcaled by the 

c:<piraliQn of the Continuing Appropriations ReS(llutiQll, 2013 (CR) on Mftrch 27, 2013. This 

memorandum direcls agencies 10 lalce ecnnin steps to plan fQr lnd manage this budgetary 

uncenainly. 

The Administnl1ioll colltinuc! to urge Congress to lake prompt lICtiQ~ (Q address the 

cum:nt budgetary unecl'laint)', includinl.llhrough the cnactml'1lt Qfbalanced deficit reduction to 

aVQid scqu(slrJliQII. ShQuld CQlIgreS~ fail tQ act 10 avoid sequcslTBtion, Ih~re will be significant 

and harmful impacts on a wide variety o(Gt1Vemm~nt servi~e~ and opcrnlions. For example, 

should se(jueslt1ltilln relOuin in place for an extended period Qflimc. hundreds Qflhousands of 

famili~s will lose critical cducatiQn and wellncss services thmugh liead Stun and JlulritiQn 

ussistatlCl' prol:r~m~. The Depanmcnt of Defense will face deep cuts thai will reduce relldiness 

QfnQn-deploycd nnilS', delay nceded inveslmcnls in equipment IlIld facililies, wid cut services for 

military families. Alld Fedeml agencies wiJl likely need 10 furlOIl~h hundr"ds ofthQusands of 

cmplQyee5 and reduce esscnlial servius such as food insp!."CtiQns, air trowl safet:!, prison 

security, border patrols, and Olrn.r mission-tri tieal activilies. 

At this tinle. agellcics do nQI have clarity regurding the manner in which Congress wiJl 

addre.sHhcse issues or Ihe Biliounl I>fbudgctary n:soun:cs that will be available through !he 

remainder Qflhe fiscal year. Until Congress aclS. ugencics must cuntinue II> prepare for the 

possibility thUi they wiJlllced 10 opc1'utc wilh reductd budgetary rewurt:es. 
9 

Prior to passage ofthe American Taxpayer Relief Act of 2012 (ArRA), the President 

was required to issue a sequestration order on January 2, 2013, Although the ATRA postponed 

this date by two months, agencies had already eng[lg"d in extensive planniug for operations 

under post-sequestration funding levels before this postponement was effected. In light of 

persistent budgetary uncertainty, all agencies should continue these planning activities, in 

coordination with the Office of Management and Budget (OMB), and should intensify effotis to 

identify actions that may he required should sequestration occur. 

Agencies should generally adhere to the following guiding principles, to the extent 

practicable and appropriate, in preparing plans to operate with reduced budgetary reSOill'ces in 

the event that sequestration occurs; 

use any available tlexibility to reduce operational risks and minimize impacts on the 

agency's core mission in service ofthe American people; 

identify arId address operational challenges that could potenlially have a significant 

deleterious effect on the agency's mission or otherwise raise life, safety, or health 

concerns; 

identify the most appropriate means to reduce civilian workforce costs where necessaryihis may include imposing hiring freezes, releasing temporary employees or not renewing 

term or contract hires, authorizing voluntary separation incentives and voluntary early 

retirements, or implementing administrative ii.lrloughs (appropriate guidance for 

administrative thrloughs can he fOlmd on the OPM website [herel); consistent ,vith 

Sectio113(a)(ii) of Executive Order 13522, allow employees' exclusive representatives to 

have pre-decisional involvement in these matters to the fullest extent practicable; 

rc.view grunts ruul contra(.;ts t.o det.cnnine \vhere cost savings may be achieved jn a nmnner 

that is consistent with the applicable temlS and conditions, remaining mindful of the 

manner in which individual contracts or grants advance the core missio[l of the agency; 

talcc into account funding flexihilities, including the availability of reprogramming and 

transfer authority; and, 

be cognizant of the requirements of the Workcr Adjustment and Retraining Notit1cation 

(WAR1\') Act, 29 U.S.C. §§ 2101-2109. 

While agency plans should reflect intensified efforts to prepare for operations under a 

potential sequestration, actions that would implement rcduclions specifically designed as a 

response to sequestration should generally not be taken at this time. In some ca~es, however, the 

overall budgetary Ullc.ertainty and operational constraints may require that certain actions be 

taken in the immediate- or near-term. Agencics presented with these circumstances should 

continue to act in a prudent manner to ensure that operational risks are avoided and adequate 

funding is available for the remainder of the fiscal year to meet the agency's core requirements 

and mission. Should circlUnstances require an agency to take actions that would constitute a 

change from normal practice and result in a reduction of nonnal spending and operations in the 

2 
10 

Mr. GOODLATTE. We welcome our only witness today, Director 

John Morton of U.S. Immigration and Customs Enforcement. And 

I will begin by introducing him, but first, Director Morton, if you 

would please rise and be sworn in. 

[Witness sworn.] 
11 

Mr. GOODLATTE. Let the record show that the witness answered 

in the affirmative. 

And we welcome you again. John Morton is Director of Immigration and Customs Enforcement at the U.S. Department of Homeland Security. Immigration and Customs Enforcement is the second 

largest investigative agency in the Federal Government and 

charged with enforcing the Nation’s immigration laws and investigating the illegal movement of people and goods into, within, and 

out of the United States. 

Prior to Director Morton’s appointment by President Obama, he 

spent 15 years at the Department of Justice and served in several 

positions, including Assistant United States Attorney, Counsel to 

the Deputy Attorney General, and acting Deputy Assistant General 

of the Criminal Division. 

Director Morton received a law degree from the University of 

Virginia School of Law. 

And, Director Morton, you are welcome to proceed with your testimony. 

TESTIMONY OF THE HONORABLE JOHN MORTON, DIRECTOR, 

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 

Mr. MORTON. Good afternoon, Chairman Goodlatte, Mr. Conyers, 

Members of the Committee. 

While much has been made of ICE’s recent reduction in detention levels, the truth is that the reduction was a direct result of 

ICE’s efforts to stay within its budget in light of the continuing resolution and the possibility, now a reality, of sequester. 

As the Committee knows, we do not have a traditional appropriation for fiscal year 2013. Rather, ICE is funded through a continuing appropriation at fiscal year 2012 levels through next 

Wednesday, March 27, and we do not yet know what Congress will 

provide ICE for the remaining 6 months of the fiscal year. 

Additionally, as of March 1, we are living under a sequester of 5 percent of our annual funds, a reduction just shy of $300 million. 

Thus, while the expiring CR provides ICE budget authority to 

maintain an average of 34,000 detention beds, sequestration has, 

in turn, reduced those same funds by 5 percent, a reduction that 

if left unchanged by Congress, will affect ICE’s ability to maintain 

our average daily population going forward. 

Despite these challenges, ICE continues to produce impressive 

enforcement results. During the first 5 months of the 6-month 

CR—that is, the portion without sequestration—we were solidly on 

pace to maintain an average level of 34,000 beds. Indeed, on the 

last full week of that period, our average annual daily population 

was 33,925 beds. Mr. Chairman, this is the highest level of detention ICE has ever maintained over the first 5 months of any fiscal 

year in history. 

This comes on the heels of ICE maintaining 34,260 beds over last 

fiscal year and having removed 409,000 illegal immigrants, 225,000 

of whom were criminals, again the highest levels in all categories 

we have ever achieved. 

At times during this fiscal year, we have maintained well over 

34,000 beds due in part to increased support we have given the 

Border Patrol along the Southwest border. On October 2, 2012, for 
12 

example, we had an actual level of 36,036 beds in use. With budget 

authority that only supports 34,000 beds, we obviously could not 

maintain such highs over the year. So we had to temporarily lower 

our detention to levels below 34,000 to ensure that at the end of 

the CR we remained within budget. 

This need to lower our detention levels was heightened by three 

factors. 

First, two of the funds we use to maintain detention space did 

not receive the funds expected. The Breached Bond Fund, in particular, had a projected shortfall of $20 million for the fiscal year. 

Second, 4 months into the fiscal year on January 18, 2013, we 

were maintaining an average daily excess of 630 beds over 34,000. 

Had we continued to operate at this level, we would have faced a 

yearlong shortfall of $128 million. 

Finally, our immigration enforcement expenses for transportation and overtime exceeded our CR budget by $16 million. 

In the context of a known full-year budget, we can usually address these sorts of issues over the balance of the fiscal year. This 

year, however, we only had 6 months of known funding and uncertain levels thereafter. Therefore, ERO, in coordination with the 

chief financial officer, decided to temporarily reduce our detention 

levels at the end of the CR to stay within budget. To do this, ERO 

released some detained aliens to other forms of supervision on a 

weekly basis throughout the month of February. Local ERO offices 

were instructed to focus on aliens who were not subject to mandatory detention and who did not pose a significant threat to public 

safety. 

Everyone released for budget reasons remained in removal proceedings. From February 9 through March 1, on average, we released over 700 aliens a week to this end. Contrary to some reports, those released for budget reasons did not include thousands 

of criminals who posed a significant risk to public safety. Indeed, 

70 percent of those released had no criminal record at all. The remaining 30 percent were either misdemeanants or other criminals 

whose prior conviction did not pose a violent threat to public safety. 

During this period, most of our field offices released on average 

fewer than 15 detainees each week. Five larger offices released an 

average of 92 detainees per week. In total, we released 2,228 aliens 

over a 3-week period in February for solely budgetary reasons, 

bringing our year-to-date detention average on the last full week 

prior to sequester to 33,925, 99.8 percent of 34,000. 

Of the 2,228 individuals released, 629 had a past criminal conviction. 460 were level 3 offenders, our lowest classification; 160 were 

level 2 offenders, our medium classification; only 9 were level 1 offenders—excuse me—8. We are reviewing all of these cases as they 

progress and will detain or adjust the conditions of release as necessary. Indeed, as the Chairman has already noted, there are only 

four level 1 offenders on release. 

In short, there are no mass releases of dangerous criminals underway or any planned for the future, just efforts to live within our 

budget. We will continue to do our level best over the remaining 

6 months of the year to maintain strong detention levels, subject 

to the requirements of the sequester and whatever funding Congress provides us at the end of the month. 
13 

Thank you. 

[The prepared statement of Mr. Morton follows:] 

u.s. Immigration 

and Customs 

Enforcement 

STATEMENTOP 

JOHN MORTON 

DIRECTOR 

u.s. IMMIGRATION AND CUSTOMS ENFORCEMENT 

REGARDING A HEARIl'G ON 

IMMIGRATION ENFORCEMENT 

BEFORE THE 

UNITED STATES HOUSE OF REPRESENTA nVES 

COMM1TIEE ON THE JUDICIARY 

TIJESDAY, MARCH 19,2013 
14 

INTRODUCTION 

Chairman Goodlatte, Ranking Member Conyers, and members ofthc Committee: thank 

you for the opportunity to appear before you today to testify about U,S. Immigration and 

Customs Enforcement's (ICE) immigration enforcement efforts. 

ICE's Immigration Ellforcement Successes 

Over the past four years, ICE has transformed the immigration enforcement system, 

smartly focusing resources on the apprehension, detention and removal of individuals who fall 

within our highest enforcement priorities, namely national security and public safety threats. 

ICE's immigration enforcement statistics from the last fiscal year (FY) highlight the 

Administration's success in focusing the enforcement system efforts on removing from the 

country convicted criminals, public safety threats, recent illegal border entrants and other priority 

individuals. Overall, in FY 2012 ICE's Office of Enforcement and Removal Operations 

removed a record number of 409,849 individuals. Of these, approximately 55 percent, or 

225,390 ofthe people removed, were convicted of felonies 01' misdemeanors - almost double the 

removal of criminals in FY 2008. This includes 1,215 aliens convicted of homicide; 5,557 aliens 

convicted of sexual offenses; 40,448 aliens convicted for crimes involving drugs; and 36,166 

aliens convicted [or driving under the influence. ICE also continues to make progress in the 

removal of other enforcement priorities. As such, 96 percent of all ICE's removals fell into a 

priority category - a record high. 

In order to maintain control at our nation's borders, ICE prioritizes the identification and 

removal ofl'ecent border crossers and conducts targeted enforcement operations with the U.S. 

Border Patrol. Attempts to cross the Southwest border illegally have decreased 49 percent over 
15 

the past four years, and are 78 percent lower than what they were at their peak. In many ways, 

the~e historic results along the Soutllwest Border are attributable to the joint efforts of US. 

Border Patrol agents and ICE officers and agents, and the emphasis ICE places on the removal of 

recent border crossers. 

ICE has been implementing a range of smart, effective reforms to the immigration system 

that allow our agency to focus its enforcement resources on individuals who pose a danger to 

national seclIlity, a risk to public safety, or otherwise represent enforcement priorities. ICE has 

established formal written prosecutorial discretion guidance for ICE law enforcement persOlmel 

and attorneys regarding their authority to exercise discretion when appropriate. The relevant 

directives clearly state that the exercise of discretion is inappropriate in cases involving 

individuals who pose a clear risk to national security; serious felons, repeat offenders, or 

individuals with a lengthy criminal record of any kind; known gang members or other 

individuals who pose a clear danger to public safety; and individuals with an egregious record of 

immigration violations. This guidance also directs the favorable exercise ofprosecutorial 

discretion to ensure that victims of and witnesses to crimes arc properly protected. 

To further enhance ICE's prioritized approach, on December 21, 2012, ICE issued new 

guidance to state and local law enforcement partners governing the use of detainers in our 

nation's criminal justice system. The guidance sets forth a uniform, transparent and etTcctivc 

manner for regulating their use in cases arising out ofthe Criminal Alien Program, Secure 

Communities, 287(g) agreements, and other ICE enforcement efforts. Moreover, consistent with 

ICE enforcement priorities, the guidance outlines the types of cases where detainers should be 

issued. These include cases involving felony convictions or felony charges; three or more prior 

misdemeanor convictions; misdemeanors involving violence, sexual abuse or other serious 
16 

conduct; or cases that pose significant risks to national security, border security, or public safety. 

Conversely, the new policy limits their use in cases involving individuals arrested for minor 

misdemeanor offenses such as traffic offenses, whieh do not reflect a danger to public safety, and 

will help to ensure that available resources are focused on apprehending convicted felons, repeat 

immigration oilcnders and other ICE priorities. It is applicable to all ICE enforcement programs 

and strategies. ICE will continue to evaluate its enforcement policies, operations and programs 

to ensure that they axe focused on our highest priorities, making adjustments when necessary. 

Also reflective ofICE's commitment to smart, effective immigration enforcement are the 

major reforms we have made to the immigration detention system, Beginning in August 2009, 

these refonns address many of the concerns raised about ICE's immigration detention system, 

while allowing ICE to maintain adequate deteniion capacity to carry out our immigration 

enforcement responsibilities. To help effectuate these reforms, in 2009, ICE established its 

Office of Detention Policy and Planning, which oversees day-lo-day detention reforms while 

designing a new detention system that aligns with OUT nation's values. ICE also conducted a 

nationwide deployment of a new automated Risk Classil1eation Assessment instrument (0 

improve transparency and uniformity in detention custody and classification decisions reflecting 

the agency's civil enforcement priorities, this assessment contains objective criteria to guide 

decision making, regarding whether an alien should be detained or released, and if detained, the 

alien's appropriate custody classification level. It also requires ICE officers to determine whether 

there is any special vulnerability that may impact custody and classification determinations. ICE 

continues to look lor ways to ensure that the health and safety of aliens in our custody are 

protected, by increasing our oversight of detention tacilities and improving the conditions of 

confinement within the detention system. 
17 

All ofthe above successes highlight the effectiveness ICE's overall etTort to establish 

clear enforcement priorities that smartly focus agency resources. 

Recent Releases of Certain Aliens 

As the Committee knows, we are coming to the end of a Continuing Resolution (CR). 

This CR funded ICE to maintain a yearly average daily population of approximately 34,000 

individuals. In early February, ICE was maintaining an average daily population in excess of 

35,000 individuals, including many who did not require detention by law. 

These detention levels exceeded Congressional appropriations, and with the strong 

possibility of sequestration, ICE officials managed the detention population in order to ensure 

that ICE could operate within the appropriations provided by Congress. Notably, these budget 

constraints are now further compounded by the reductions required by sequestration, which 

represents a nearly $300 million cut to our budget that we must absorb over the remaining seven 

months of the fiscal year. 

In reducing detention levels, we took careful steps to ensure that national security and 

public safety were not compromised by the releases. All release decisions were made by career 

law enforcement officials following a careful examination or the individual's criminal and 

immigration history ensuring that the tocus remains on detaining serious criminal offenders and 

others who pose a threat to the national security or public safety. Every individual released was 

placed on an alternative form ofiCE's supervision, and all released individuals remain in 

removal proceedings. 

1 regret that the timing of our releases caught many by surprise and we would be happy to 

bl'iefyour statTs further on this issue. The releases were a direct result ofICE's efforts to stay 

4 
18 

Mr. GOODLATTE. Thank you, Director Morton. 

I will recognize myself to begin the questioning. 

Of the more than 2,200 detainees that have been released so far, 

several hundred are criminal aliens who have been convicted of 

crimes such as theft, fraud, and other crimes perpetrated on people 
19 

in our society. Was the decision to release detained illegal and 

criminal immigrants a unilateral decision made by you? 

Mr. MORTON. It was a decision made by the career officials in the 

Agency, and in particular, Mr. Mead and our chief financial officers. I support their decision completely, and to the extent that 

your question asks was it made by anybody outside of the Agency, 

the answer is a categorical no. 

Mr. GOODLATTE. Did you coordinate with any officials at DHS 

headquarters in making the decision to release potentially dangerous illegal immigrants? 

Mr. MORTON. None whatsoever. 

Mr. GOODLATTE. Do you even have the authority to act unilaterally with respect to releasing thousands of detained illegal immigrant aliens? 

Mr. MORTON. Well, first of all, the answer is yes. The authority, 

by statute, rests with me and the officers of Agency. In fact, other 

than the Secretary, we are the only individuals in the department 

with that authority. 

Mr. GOODLATTE. And you are saying that a decision to release 

2,200 people for this purpose, whatever the purpose may have 

been, whether it is to save money or for other reasons, had no communications with the higher department to which ICE is an agency 

that you report. 

Mr. MORTON. That is correct. These decisions were made inside 

the Agency for budgetary reasons. 

Mr. GOODLATTE. I have in front of me a memorandum dated December 8, 2010 that you submitted to Secretary Napolitano under 

the subject matter, expanding expedited removal to felons unlawfully in the United States, where you set forward the purpose of 

making that request, the background for making the request, your 

discussion about the request, and at the bottom, your recommendation below which is a signature line for the approval of the Secretary. Is that standard procedure for you and others in agencies 

within the Department of Homeland Security for making decisions 

regarding changes in policy at the department? 

Mr. MORTON. That was a recommendation to the Secretary about 

possible ways to streamline removal efforts, and that one had to do 

with expedited removal. So that was specific. 

Mr. GOODLATTE. I understand, but why would the decision in 

that case have required you to make that request of the Secretary 

and the decision here to release onto our streets, as opposed to the 

expedited removal and deportation, 2,200-plus people? In fact, we 

have seen documents that suggest that the plans are to release several thousand more onto our streets without any approval from 

Secretary Napolitano. 

Mr. MORTON. The regulatory authority for expedited removal is 

set by the Secretary, not by the Agency, unlike detention releases. 

ICE has the exclusive detention authority within the department. 

Mr. GOODLATTE. So you are saying that if you want to increase 

the deportation of people outside the country and expedite that, 

you have to seek the approval of the Secretary, but if you want to 

release the same people back onto the streets of the United States 

where they can commit more crimes, you do not have to seek the 

Secretary’s approval for that purpose. 
20 

Mr. MORTON. No, that is not what I am saying. I am saying that 

if I wish to change the rules for expedited removal, I have to go 

to the Secretary with that proposal. That authority does not rest 

exclusively with the Agency. And that was about a very specific 

statutory and regulatory power that is not held exclusively by ICE. 

Mr. GOODLATTE. I understand that with the exception of custody 

operations, ICE was operating under the presidential budget, not 

at the budget set by Congress under the continuing resolution. As 

a result, all the other accounts in ICE carried a balance of $240 

million for the year and $120 million for the past 6 months. Additionally, your CFO indicated that ICE carried forward $100 million 

to $120 million in user fee balances. 

Can you tell us why ICE did not ever submit a reprogramming 

request to Appropriations which can be handled at the Committee 

level rather than releasing detained illegal immigrants? Is it not 

true that both ICE and DHS could issue reprogramming requests 

to cover the costs of these released detainees? 

Mr. MORTON. We can seek reprogramming requirements. That is 

absolutely true, Mr. Chairman. And we did not in this instance. 

I am trying to live within the appropriations that Congress gives 

us. Our single largest appropriation is for custody operations. And 

we were trying to live within our budget, recognizing that we had 

to go the full year. We did not have a full-year appropriation. We 

only had 6 months. Sequester was coming, and we play it very 

tight to the vest in every operation that we did other than custody 

operations where it was important enough and we operated at a 

level above what we were appropriated for much of the fiscal year. 

And I did not want to rob Peter to pay Paul. My view is that we 

need to maintain the operations of the Agency. I do not want to 

furlough people, and I need to make rational judgments across the 

PPA’s that we are given by the Appropriations Committee. 

Mr. GOODLATTE. The Appropriations Committee is very used to 

dealing with excess expenditures necessitated by changed circumstances and do respond and do respond quickly to those requests. 

But I am pleased that you acknowledged that you could have 

done that and dipped into surplus funds from fees or from other 

funds carried over from other operations of the department rather 

than releasing criminal aliens onto our streets. 

And I will ask unanimous consent to enter the following documents in the record: a letter to Secretary Napolitano from Senator 

Grassley and I requesting specific information on the detainees released as a result of sequestration. We expect ICE to respond to 

this request for information. 

A letter from the Pinal County Sheriff, Paul Babeu, stating that 

on February 23, 2013, Immigration and Customs Enforcement 

processed and released 207 illegal immigrants from the ICE Eloy 

facility in Arizona on this date alone. Of the 207, a total of 48 had 

been charged or convicted with either manslaughter, child molestation, aggravated assault, weapon offenses, forgery, drug offenses, or 

other serious crimes. 

And third, a memo from Director Morton to Secretary Napolitano 

requesting the expansion of expedited removal to felons unlawfully 

in the United States, which I referred to earlier. 
21 

Without objection, those will be made a part of the record. 

[The information referred to follows:] 

C!:nttgrl;'$!i 11£ t!!~ t~llHtu §ltntell 

Illtm.J,il1g,hlll. ID~ 20515 

Via Electronic Transmission 

The Honorable Jane! Napolitano 

Secretary 

U.S. Department of Homeland Security 

Washington, DC 20528 

Dear Secretary Napolitano: 

February 27, 2013 

The March 1 sequestration deadline means each federal agency and Department lhal is notexempted shall reduce its budget so as not to violate the required spending caps established 

under the Budget Control Act of 2011. On January 31, 2013, you 'wrote to Chairwoman 

Mikulski of the Senate Appropriations Committee outlining how sequestration would impact the 

Department of Homeland Security (Department). 

We are concemed about reports that the Department is alreadY taking action to implement 

3eque~tration by releasing criminal aliens from detention facilities and sc,riously putting the 

safety ofthc public at risk. Some rcports suggest that as many a~ 10,000 detainees across the 

cQuntry will be released in the near future in order for ICE to reduce its average daily detention 

population from 34,000 - a Congressionally mandated n'quirement- to 25,000. According to 

infonnation obtained by Congress, ICE is "mass releasing" aliens convicted offrand, theft, or 

drunk driving offenses, as these aliens arc not considered to be subject to mandatory detention. 

According to other reports, illegal aliens who are documented gang members and those who 

have been arrested for but not convicted of Ii sel~ous crime are also being released. Additionally, 

it is rcported that fugitives and aliens with final removal orders are also being released. 

According to information we have obtained, many ofthcsc aliens are being released on simple 

recognizance. 

111 a letter to Chairwoman Mikulski dated January 31,2013, you vaguely detailed the impacl 

sequestration would have on the Department, stating that it would nol be able to mainlain current 

staffing levels or immigration detention and removal operations. SpecitlcaUy, you stated that, 

"[eJven in this current fiscal climate, we do not have the luxury ofmaldng significant reductions 

to our capabilities without placing our Nation at risk." 

On Monday, in a public statement, you said, "I don't think we can maintain the same level of 

security at all places around the country with sequester as ",ithout sequester." On Tuesday, at 

the Brookings Institution, you claimed that sequestration Hv-.ill have to atlect our core critical 

Illission areas. tI 
22 

The Honorable Janet Napolitano 

Page 2 of4 

Your Department was given detailed planning guidelines by the Office of Management 

and Budget (OMB) to implement sequestration in such a way to "reduce risks and minimize 

impacts on the agency's Core mission in service of the American people." On January 14, 2013, 

OMB Deputy Director for Management Jeffrey Zients issued a memorandum for the heads of all 

Departments and Agencies (hereinafter OMB Memo) regarding planning for uncertainty in FY 

2013.' That memorandum laid out a series of guiding principles for preparing plans for 

sequestration. Specifically, the memorandum rccommends: (I) using flexibility to reduce 

operational risks and impacts on the agency's core mission, (2) identifying and addressing 

operational challenges that could have a negative impact on the agency's mission or impact life, 

safety, or health concerns, (3) identifying the appropriate means to reduce workforce costs, (4) 

reviewing grants and contracts to determine where cost savings may be achieved, (5) utilizing 

l1exibility such as reprogramming and transfer authority, and (6) maintaining adherence to the 

requirements in (he Worker Adjnstment and Retraining Notification (WARN) Act.' The OMB 

Memo also instructed all agencies to work with OMB prior to taking any budget action in 

advance oi'sequestration and required each agency to "submit draft contingency plans for 

operating under sequestration for review."] 

While the administration is clearly embarking on a campaign to scare the public and 

Congress about the realities of budget reductions, it is clear that you have not planned adequately 

for the March 1 sequestration. Despite the rhetoric, it is alarming that you have already taken 

steps and made decisions that go against the Department's core mission, and at best, appear to be 

poorly reasoned and contrary to the OMB memo. The Department has decided to release 

criminal aliens into the population even though detention beds are below their average daily 

requirement of34,000. Releasing criminal aliens and failing to utilize thc detention beds that 

Congress has mandated is an abrogation or the Department's Mission to ensure the safety and 

security of Amcricans. 

While the Department released illegal alien detainees into the population on the basis of cost 

culting, we find this decision particularly troubling because the Oepmtmcnt has carried or will 

cany forward billions of dollars in fiscal years 2012 and 2013. Last year, the Department 

announced an unobligated balance of over $8 billion. The Office of Management and Budget 

projected that at the end of fiscal year 2013, the Department would have more than $9 billion in 

unobligated funds. 

Simply blaming budget reductions as a means to turn a blind eye toward the national security 

of the American people is a dangerons plan and one that calls into question the Departmcnt's 

preparations for sequestration. To better understand how the Department will better confront 

sequestration and reduce operational challenges that could affect the life, safety or health of the 

Amcrican people, we ask that you provide responses to the following questions: 

I Memora.ndum from Jeffrey D. Zients, DepLlty Director for Management. Office of Management and Budget, to the 

I-lends of Excculivc Departments and Agencies (J<1tl. 14,2013) (011 file with the Senate Judlciary Committee), 

2 Jd. ill 2. 

, fd, at 3. 

2 
23 

The Honorable Janet Napolitano 

Page 3 of 4 

(1) When did this policy take effect on relcasing illegal and criminal aliens duc to the 

sequestration and how many illegal and criminal aliens have been released under the 

policy? How many illegal immigrants do you expect to release under this policy? 

(2) What agency officials were involved in making that decision to release criminal 

aliens and what type of cost analysis waS used to justify the release? 

(3) What categories of aliens are being rcleased? Are suspected gang members, aliens 

convicted of fraud, theft or drunk driving offenses being released? Are fugitives and 

aliens with final removal orders al·so being released? 

(4) llow many of these aliens are released on recognizance, ankle bracelets, or with other 

reporting requirements? 

(5) Provide a copy of all draft contingency plans for operating under sequestration 

developed pursuant to the January 14,2013, OMB Memo and/or those submitted to 

OMB for review. 

(6) Your lctter to Chairwoman Mikulski indicates that the Department would not be able 

to maintain current staffing levels ofBordcr Patrol Agents and the Customs and 

Border Protection Officers as mandated by Congress. Specifically, what activities 

will be diminished by these agents? Aside from personnel cuts, what programs and 

activities of the Customs and Border Protection will be impacted and how? 

(7) Your letter to Chairwoman Mikulski indicates that the Department would not be able 

to sustain current detention and removal operations or maintain the 34,000 detention 

beds mandated by Congress? Specifically, what enforcement operations will be 

scaled back or ceased? How many of the 34,000 detention beds will not be used? Of 

those currently detained, how will you determine who is released? 

(8) Missing Ii'om your letter was a detailed analysis of whether the Department has 

continued a hiring freeze since the passage of the Budget Control Act of 20 11. I ask 

lhal you provide a detailed list of the number of individuals hired by the Departmcnt 

since the passage of the Budget Control Act. I'urther, provide a breakdown of the 

number of individuals hired since January 1,2013. 

(9) What impact, if any, will sequestration have on conference spending by the 

Department? Will there be a blanket prohibition on conferences in lieu of furloughs? 

If not, why not? 

(10) What impact, if any, will sequester have on executive travel? Given the OMB 

Memo recommendation to "use any available tlexibility to reduce operational risks 

and minimize impacts on the agency's core mission," will the Department eliminate 

or significantly curtail non-mission travel by the Department? lfno! why not? 

Provide any cost analysis of savings sought through a reduction in travel in light of 

sequester. 

(11) What impact, if any, will sequestration have on the use of Department vehicles by 

employees for commuting to and from work given the pending budget shortfalls? 

(12) Will the Department move to recover any of (he $17 billion in unspent funds and 

reallocate them to mission-critical activities? Ifnot, why not? How will the billions 

in unobligated balances be treated? 

(13) Please provide a detailed explanation of cuts that will reduce wasteful, duplicative 

and ineffective programs. 

3 
24 

TOe HllnOrab"llll>01 /1:"",1""1)0 

P.&d uU 

Giy~n the end of,he week dt':tdli~ for 5(:(jucslrntion, we ask lhal you provide Illis 

infornunion lIS soon as possfblt', bill na llllt'r than Man:h 7. In the event YOUT ~ponse "'quiret 

transmiuing ,Ianilied infOfTTUltion. please contaci House Judiciary Commin« Counsel, Dimple 

R. SbBh, II 202-225-3916 or Sc:n~I"" Qrasslt'y-s slalT, Kathy NUt"be1 Km'a.rik. at 202·22<4·37<44 10 

make the proper amtngt"ments 10 C'fI5UIT stturilY of docummts. 

Bob GoodJane 

Chairman 

House COl1lmillee on lhe Judiciary 

, 

u....1. A_ --_L. 

ChatlesE

~natc 

Rllnking 

Commincc 

M~mber 

Ora3$~ 

on the Judiciary 
25 

Pinal County Sheriffs Office 

National Sherilr, Mso... htioo 

Alin P,es.idoml Sh~riffw.rryA",ersoo 

1450 Du~~ SI,eel 

Ale:;;uldlia. VA 22314 

Fu 70J-838-5J49 

Dear Sheriff AmeyWII. 

I am asking for rhe ~pport of my fellow Sheritrs 00 an i~!>U~ whieh MS the. potential 10 lltTm ~ery 

tummu";ty a.'!'OS. Amc:tica The ilSUC ilhouido'l be cOluidet'l'd a poIitiCIII is..<ue for anyOllc bUI l1I!ht,. a 

nalioonl s«urily . poblic ~fely el1ler~tn'y The r-:SA I, ~'I()Wn ~ the kl')' lead~r on critical criminal juSlice 

and homeland ".""" ity issues I Rill ilSkinglhat Ihe NSA ass .. t our ome.:: and ~II of Ihe Shc:tiffs' J\Cn,'" 

America in oblaioiog the infi)f1\laUOO we n~'C'd from lmmil!f1llioo Lusloml enforcement in ool~ 10 pmle<:l 

the citizens we !\lIVe bee<J elected 105el"'" 

Due 1<1 public prfS!.Ure. Immigulioo CUllom; Enfortemem (lCf;) has admiued they relased O"t'r 2.000 

illegal, from el~nlioo facilities lhrougll.clUl Ihe United Siaies Rnd Ihey plan to reteut. InOlher 3.000 mllr(' 

Ihis moolh Acrording to DircclPr Monoll of ICE. O\'er J[N oflh~ released already have crimina! record~ 

h~re in lhe Uniled Siaies. Two mlhe deninces released from Ihe ICE delenlion faeil;l), in my Coonly have 

p;!'1 C'rimilLll charges f()r manSI8ul;111~r and OIhtrS who "ere released had ~ eh~l'!/.ed or tQnvic1<~d wilh 

drug smug,gjing (""".kl. ",,,,,,/I.,,,). n"":oDcs tnnic);inl!, fOf!!c,)" wea[>Dl1s ofTenses, child mulesl3lioo, 

aJ;gf1lValrd robbery. aggravate<! DUI iUld '!!.I:!ravated lIlSauli lJ!ain.1 peace om."", Equally c(Iflceming is 

Ihc flCI ICE r~le."'" fmm In";r CU!looy. "lA,w/l" offender. which It< Ihe mOSt danger"", classification of 

i llY offender ICE hU 

R~idi, ism is ,.),.,y. high among Iho~ "deased from cuSlody and nOW there is no doobl il wj[[ t>e even 

high~ram",,--~I theS., indiv'dua,l. as they me not c,'en le~1 U S citizens. We may never !mow h(fWhigh the 

roddivism rale is em Ih<~ crimilUl[ ;i[e,!\I'iri b~ujc Iho:)' .cfus" 10 provide law ""fOl'l:=""t with Ihei, 

names. criminal histooi~s. $l'CIJrily threat ~II' 1<JC.'Ilio'" 

97 1 JII$OI1 l opez Circl e Building C • P.o. Bo ~ 861 • Floreoce. AZ 85131 

M3in(S20)866-6800· Fro: (520) 866-5 19S • TDD(520)868-6810 
26 

So far the only information we have received is through Whisleblowers who came forward and provided me 

with the infonnation. Since then, I have attempted but have been unsuccessful in obtaining any information 

from ICE Officials, Secretary Napolitano or President Obama 

The terrorist attacks on the United States of America on September lIth, 2001 were the most devastating to 

ever occur on US. soil. On November 27th, 2002 the National Commission on Terrorist Attacks Upon the 

United States, also known as the 9lil Commission was formed. The Commission acknowledged there are 

some real security interests which must be kept in secrecy but these concerns must be weighed against other 

pertinent concerns such as transparency 

"lhe Cllilure (if agencies feeling Ihey ownlhe ilrjbrmalion Ihey galhered at /axpayer expense mllsl 

be replaced by a cullure in which Ihe agencies insleadfeel Ihey have a dUly 10 mjbrmalion-Io 

repay the taxpayers' invesmICnt hy making that information availahle. ,. 

Below is a chronology of events to better help you understand the magnitude of this public safety issue 

On Saturday, February 23rd, 2013 Immigration Customs Enforcement employees who work as Detention 

Removal Officers were called into work and 207 illegals were processed and released from the ICE Eloy 

facility on this date alone. Of the 207, a total of 48 of them had been charged or convicted in the United 

States with either manslaughter, child molestation, aggravated assault, weapon offenses, forgery, drug 

offenses and or other serious crimes 

Whistleblowers including ICE Supervisors, ICE employees, U.S Border Patrol Supervisors and employees 

immediately reached out and informed me about what they were being ordered to do by ICE Administration 

in Washington, D.C. Employees knew what they were being ordered to do was unethical and completely 

contrary to their sworn oath to protect the American public. 

Employees had serious concerns about the clear public safety threats this would cause to the American 

public because many of the detainees being released have criminal records and they were being ordered to 

give them court dates as distant as two to three years away from their release date 

Upon learning this information, I immediately contacted senior staff members at ICE in an attempt to 

continn the infonnation he was being told by whistleblowers, to determine who made the decision, where 

the detainees were being released too, and a list of their names, criminal histories and security risks. All 

attempts to obtain information were refused and the only information he continued to receive was through 

whistleblowers 

After failing to be given any information from ICE Officials, on February 26th, 2013 I sent out the attached 

News Release notifying the public of the release of over 500 criminal illegal detainees trom detention 

facilities in Pinal County. ICE had attempted to release all of the criminal illegals under secrecy. Later that 

day, ICE acknowledged the release but said it was "only afl!w hundred natiOlm'ide. " 

As public pressure mounted, ICE later admitted they released over 2,000 illegals trom detention facilities 

throughout the United States and planned to Telease another 3,000 more this month 

After this information went public, ICE officials had supervisors attend briefings and also sent emails to 

employees threatening employees who released information on this matter to a third party would be 

disciplined and possibly terminated 

971 Jason Lopez Circle Building C * P.O. Box 867 * Florence, AZ 85132 

Main (520) 866-6800 * Fax (520) 866-5195 * TDD (520) 868-6810 
27 

On February 28th, 2013 I sent the attached letter to Secretary Napolitano formally asking for the same 

information Still as of today, I haven't heard back but have heard from ICE supervisors, she will not be 

providing our ot1ice the information we requested 

On March 4th, 2013 I faxed and sent by mail, the attached letter to Congressman Issa (Chairman (If {he 

Ol'ersighl and Government Reform Commiflee) requesting a congressional inquiry and oversight hearings to 

investigate the recent mass release of more than 2,000 criminal illegals from ICE custody. 

On March 5th, 2013 Congressman Issa announced that he will be launching a formal investigation into this 

matter. 

On March 14th, 2013, ICE Director John Morton told members of Congress during his testimony, in fact 

629 of the released detainees had criminal records here in the United States. Ten of which were "U;;Vl\T 

ONE" offenders which are the most dangerous classification of any detainee in ICE custody Director 

Morton said, the ten are back in ICE custody yet he has still refused to provide local law enforcement 

agencies any infonnation 

My office has not been notified if the ten who were rearrested include the two released from the Eloy ICE 

facility who had been charged with manslaughter, or the ones who were charged with molesting children, 

weapon offenses or aggravated assault. 

Thank you for your consideration on this matter 

Respectfully, 

%ZI'R~ Paul Babeu, Sheriff 

Pinal County, Arizona 

971 Jason Lopez Circle Building C * P.O. Box 867 * Florence, AZ 85132 

Main (520) 866-6800 * Fax (520) 866-5195 * TDD (520) 868-6810 
28 

NEWSRELEASE 

p",", C""MySho<""o OffIce ' 91' J _ lOpU ~ .. 

flot. noo. Alit""" 85' 32 ' 620_·52011 ' Fa.: &2O-IIH·51U 

CONTACT. ~rec or of Adminlslration, Ti m Gaffney. 520-705-812-4 

ThouS:lnds or [Criminal lIIegnls Being Released 

I'i"al COllnly, Ari~ - Sherilfl'aul Bab ... " blasted the Washington gridlock ... ,gardi~t( Ihe "s.:'(I"";I~r Bm4."1!/ 

lilllll,," .nd suys i, il8lread), hllfTllingpublic"fetyin Ari~on" by I(E't m8S~ ",'ea~e Dfhundred~<lfillegal$ 

and plans for the release ofnearl)' 10,000 mOlt-criminal illegal' from prison 

Many nflhese ICR detainees Ire held al rrivale f8Cilj(i~ which arc cOntracted In hO,,~cnminlllllcgaI5 ICIl 

repOrtedly plans to r<'\lute their a, ... ilabh, beds 10 25,700 from 'htir CUIWll, J 4,ooo Shf.'l'ifl'/hl).,u said, 

"("kilN), •• "'rI"'" l'fII""H", W'~ """')1 1't' 1<~l't·tJ If' 1/", '"1"'1.< if ,m, 11JI.1I' '-"","''''''';Pl' hy 1/'''' ,"m',< h",Ji\"1 

I"mltl'" 11>1'.'" ",., III.·!.~" \ ,,,,,I ~,,,,,,I'''''.l<h 1I1 O"'''m' ''''/I /"';'1""" /111,< ',I" 'II.\m", ,10", f",h1,c J<Jjl'lyl .• 

,«rifir~" ,,11<'111/ ~m",1<1 bo' 1/1<' 11In4.~'/ Wi<"'I) II~11 ',I ... ,;. .. /:111"'{.'1/, · 

ICE 8gCllli w~ poUd UVerUme Sltlurday 8lld S,mday 10 release <,)\Ier 500 dctai,,~ in P;n~l County alone 

l1\e.5e criminal illegals were scheduled for- deponation. yet now They receivea partlon and Of\CC' '!IiI;n become 

ihep,oblcm uflocallawenfor<:em .. m lind, bultk'flIOlheSlaleof Ari~ooa. 'n..:Pn:lIidem prWi!.1sa doomoday 

-'C~nBri(J and his plans are alr~ndy being knpjemelllc'!l 

Sheriff Babw cuncilldw, "I'","II{.'III Olotllm. "'",,hi ".",'r /'el<"I> ~ SUI/"rm,,,,," iII~~,'I_\ 10 II", ''1r~,'" <>/'1/, 

b"",,· I,,,,,,, •. \"111<' """,1<""-,,/)/,,," "" rd~".,,,,g II",,,, III ;lrl=<N~1 n .. ! lilil/<'I)' "jll", I'l,Ihlic I.' lilr.>(,i<""'1/ "'Nt 

1/1<' rill.' qf"~' Ji ..... 'ard,·".)J' (l1J()/Jlklll ~wll'-!II IIIi.,' Se<f",,-"'~r &.111 .. ~ 

·)0_ 
29 

Pinal County Sheriffs Office 

Fcluuary28,201l 

Secrclilry Janel NapoHtano 

OtopantnC1lI of !-tomeland !)(:euri!)' 

U,S Depallmenl of Homeland Sccunl)' 

Was.hinl.\IOfl, 0 C. 20528 

IX",! Secrt'lary Jan<1 N.poIitano, 

I'm "'iling 10 formally n:qUC~1 infamll!;"" .boo, the hundreds of criminal il1cy.11 who we,e rdea.ed from 

cuSlody Ind se1 free in l'iIl3\ County thi$ wee~. , 1m requesting deu iled informalion about Ihe idemilY. 

criminal hi.Illf)', and threal .,,,,,,,,menl 001 every .in!ll~ criminal (lull yoor all"ncy released un.ler your ,=1 

budget plJdon J hive already r<quesled Ih' ~ infomlauoo from your 513ff e~ in ArilOOl, hcw.'cver;1 h..., 

b.-en denied 

You CII/l '! have ;1 botb waysl You. oOiee no" Slys these are low ri~k and nl>ll-viol<',,' crimiD.I~. yn 

DireclOf Jolon MOllO" , youf><!lf. and President Obama have WOlsislenlly a'l!,ued lhal ICE lac);ilhe funds 10 

h(>Use all .rim;nal illeJOllI. and yuu ""I~ rocu~ yuur limit...! f,,,.ncial resuurcc. !U identify. impriwn. "nd 

deport lhe .... '00;1 H ,OOO oflheeslimaled II ml11l0l1111rl!llis here in lhe Uniled Slalt"ll This is lhr same /ll"oup 

Ihal "t .re Illi king i1bool ~er~ Ind the S''''l1<: criminal illfJ!lls thai e-en you and f' ~denl Obaml Ms said 

you ..... IUlIOO to deport 

f'"<0I 0C01 and logic !noold h,ve requirOld yOlll staff to I"ormAll y nOlify me, I S the top law cnfon:tmcnt omcial 

in the county ..... ~ere this occurr.:<!. ab(llJl Ihis ma>s rel~a!IC or hundreds of foreign criminals inw my oounly 

and clsC\O,he",. yet r~I!'~1 abl)' IhI. nC\·er h.pp<.'nt<d Even as the oormilutionally d.:aed Sheriff, 1 do nO! 

have 8I1y authority 10 release inmBl~ or de·llli n~ in my jlil ..... ,lbouljudiciallction. Th~ ;ilen~ from ICE.;n 

r~ilinll 10 InS",,,, if any judge was i"voh ~ wilh lhis rei""", or Ihe change of"the leffilS of lht"ir dCtenlion i. 

whal ..... e in Ilw enforcemenl <:alii tlue 

Supe,..,.ised rei."..., for ""Y foreign crimin;tl is lauJ5habl e Whal inc~ntiVe do ,,"minol IUtg;Ils have 10 rrpurt 

in wlhc 8uthorili.,. or for them HOI!U culoffthdnmkle brnceler"' What i. the WOf>l punishment ... oold Ihey 

lace· Mporlation' Recidivism r.1lej; are '~trtmely hiJ5h for any inc~rc raled individu~. yrllhii JKlI)ulalion 

..... ill b~ higher n,ose who were released had no pri.,.. nocke ofl>einl.( ",' flee. which;$ irnpon.m for each of 

them . .s .... O!II .s yoor 'IlItfro .SS;~1 in p~parin!! fOC" Il1In$ilion 1"10 the tOO1munlty !\lld 10 em;lIre som~ safery 

n~t They lad lh~ money. famil y IiUppor t, o"d ability II) 8~1 • j<Ji> _ nOl just l=>1uiiC lhey hove" erin,inal 

rOCOfd. bUI betausc they're NOT U S ,ilizen. Thi, mass release is. recipe for dbaSltr. FUMe vicrims '11" 

likel y crimes .... ; 11 hold yoo and your .dmin;~IIlIUon "'!'p(H1\ible 

97 1 JII$OII l o pez. Circle Building C • P.O. Bo ~ Sfr7 • Floreoce_ AZ 85 1232 

M3in (520) 866-6800 • Fro: (520) 866-5195 • TDD (520) 868-68 10 
30 

In an effort to mitigate the threat to the public's safety, I again formally request the names, location 

provided for their supervised release, criminal charges for detention and their criminal history 

Your immediate attention and response is requested 

Respectfully, 

Paul 

~R~ Babeu, Sheriff 

Pinal County, Arizona 

971 Jason Lopez Circle Building C * P,Q, Box 867 * Florence, AZ 851232 

Main (520) 866-6800 * Fax (520) 866-5195 * TDD (520) 868-6810 
31 

Pinal County Sheriffs Office 

Morch 4, 2013 

U,S, COI1i!Jt:SSn1l1n o"""tllssa 

Comnlln"" <III o.'Cf5lghl and Gowmmenl ~form 

1347 lI.a~burn HOlM Office lluihlUlfl 

Wask,nlllll11, IX: 2(l~LS 

F,,-~ 102-22j.J10l a"d 202125_J97~ 

Ch."man Iss.., 

I'm ,,,,"n£ to funnally ''''lU<'$I a COn&fIlS!"on.1 ,nqwry and OV<1'S,ght hea'mgS 10 In'''lS''SIll~ ,tu, ""'ent nlass 

~Iease of more .han 1.000cnmmal ill.gals from ICE cuslOdy No P"OI oonce was!:,,'tII 10 lilly local. rounl)'. 00-

SIlU~ law enforcement om~,:.l nbou! ,hiS ;>ellQ(l. ..-luck ~,eJ;mlS ob~II>'" danller.; 10 OUr communities "'., WI! ar~ 

""IMiti!d kI protect ! h3"~ J(',lI:alcodly Itq....s:rt"tl Ihal ICE IlfId Homeland Sec"f1!), S«f'~ary. Janel N.pt\litano, 

pmv,de myself and olll ... low."f".e",""", offic .. l. Ihe de\3,led ,nformallon .bo", th. ,de<oUI)'. ""m,nal h,,""Y, 

..,d IIlll'al assessmtll, of ,""'ry SUtgic rnrrunal tha, IC'E h"" releBSEd To dOle, !h,S infomt:lli"n Ms been 

repea"dly dented by tCE and I've I;Ieen wl,t!hlll lhl ~ II\fO"""llon shall ftI)I be fonhronl'~ 

Severill ""',slle blo"-e,s, who cUfM\dy MW: Ill; fldcral agents III1d >upe"UO<1 III1d ''~ d""el ly ,",,,,1, ... -<1 on 

rele"""lI mesoo ~rin"nal ,liell"l. have app.:..led to ..... on." a"emplto thw:o.n ICE's plans to rde",,~ more Ih." 

5.000 "rimulal. ,nto Ih~ Sll<el~ . Our ,n,nal Slalem.",. alefllnll doe public 10 Ou. -"I"",ion sparled a pu~loc 

<lUlery, ... tuch hahed ICE's fur1h .. pl1Ul5 to release 1111 addiu Ol1al 3.000 cnm,nal5. ICE ,",holly den,ed Ike 

all<:S011>Or1S ..bout. maSS cnmmQI p"son release, lIten 131..- adm"too 10 • couple h...,d,ed and ~ys late, 

1I<~ IIO..1 .. odtl'd Ih41 JQJ we,<"- ... Ieas.-d from four fac,hl,es- to P;nal CClU!1i)', An"""'., We I.I~' <onfirrnffi thai ICE 

had conctaled 'nfurm~I''''' and Ih.,e ""ro rnOn: Ihan !,ooo <nm'nal. ,eiellsed, ycl Ihry <ontlnued 10 1tI.II'''t~'n 

Ihat mey 001)' ",I __ d " /u ... mk(!l~/ non·',..,'.· .. , "ffi:It<k .. " 

This 1:lSI t~lkln ll P<>"" on "'" ... risk "'Ill Ik ..... "'>lW' "jfo''''.I''!!" '-""$ m'.nt,onall~ IiesJl)l1ed 10 II\JJle:\d the public 

OIld to all.v",,~ f.3ls (IV", Ihe obVIOUS safely con<_fIlS 1I.al WOuld bo> pte5Clll. ,t C(IIW'C1ed fclans ""d ,ne!!-'l' 

ch~'l:cd wlln v,olenl eOmllla] Clffenscs .. ·.r" In racl releaM'd As ,",rially r.are.J,lllOw tlelleve 5enOllS enmon .. ls 

have been ,eleased 1010 ou, "010,,"milil" urns. Amcnca lUll! here ,n Pinlli COllni)' rac,lon.,.. I h.,,,, ,ece""d 

",fonn"tiou mat "WI)' ,1I"!1815 "Ito were .. 1U'ltd Mve me folio"'''1l """,,,,.>1 ""n""Iions . .. UpOn oll"c"""". snlU~ 'w-co'Iias Imffi<k",J:. fo,,,:"ry, .w.,"al~cl ItSSlIult a.ga;nSl p<>loc~ Clffioers. .. ,d ,"lid moI"'lauOfl 

Th<:lugh s.erious. .l ,snOI 10 be OUldone by Ihe release ofl'-'O c"",,".>Is ""h pa51 ch;u-ges fo, mansl~u!1ner 

./\Io .. ly alilh. ,nfOJ1TlOI'Cln thai l it3\'<"- r...,.., " ed from Ih.-se f~dt .. ,.n1 .!:"oos hItS proved lrue:tnd "", ... nlely a<:<~,al0. 

--hich fI,,~!ol:ly conll"ftSlS "i'h Ihe denral:! Md e~nl,,~1 dribble of pmiai lruth. .. by ICE officllII~ and \\'1l1l<'-

House SJlOkesmon Jay Carney, ..-!to ~I.!ed "III" )«I'''"'"'''''' /oltJ ",k","eJ ° [eM' /mmln.-t/" or the ","ghly JO,OOO 

il legal 'n1n"!Y1"'1S held '" fed.nd lkIl'1ll,on """dinjl d<!ponati<}n proce«li"JlS Carney ~d the Imm'!;IaI\(S 

f~eue-d were "/,,",.rls//' "",ocrimh.iJldclili" u •. • 

97 1 JaSOJI l opez. Circle Building C • P.O. Box 867 • Floreoce, ttZ 851232 

M3in(520)S66.6800· Fro: (520) 866-51<)S • TDD (520)S68-68 10 
32 

Director John Morton, Sec. Napolitano, and President Obarna have consistently argued that ICE lacks the funds 

to house all criminal illegals and therefore only focus their limited financial resources to identity, imprison, and 

deport the worst 34,000 of the estimated II million illegals here in the United States. You don't have to be a 

detective to figure out that ICE would NOT waste their precious fmancial resources, limited law enforcement 

personnel and prison beds on low risk and non-violent criminals 

In addition, many have raised the question of the presumed legal authority of ICE to release and change the 

terms of custody for thousands of criminal illegals. The silence from ICE on this matter is a clue. TCE and Sec. 

Napolitano have failed to answer this charge and to confirm if any judge was involved with this mass prisoner 

release and to change the terms of their detention. ICE leaders should be forced to testity under oath about their 

false statements, refusal to provide notice and relative information to affected law enforcement agencies 

ICE should also be required to Justity their latest concept of supervised release for foreign criminals What 

incentive do criminal illegals have to report in to the authorities or for them not to cut off their ankle bracelet and 

flee? What is the worst punishment would they face - deportation? Recidivism rates are extremely high for any 

incarcerated individual, yet this population will be higher. This mass release shall prove to be a disaster, where 

future victims of likely crimes will rightly hold ICE responsible. 

Any assistance you may be able to lend in requiring ICE to provide myself and all local, county, and state law 

enforcement with the names, location provided for their supervised release, criminal charges for detention, and 

their criminal history would be greatly appreciated. 

Lastly, I'm concerned for the whistle blowers who now fear for their jobs TCE staff is now receiving e-mails 

and personal briefings by supervisors warning them against the release of any information to anyone outside 

their agency. They have now been told that any release of information outside ICE shall result in disciplinary 

action up to and including termination. These latest tactics have created an environment affear and intimidation 

that is hostile for the whistle blowers and other federal agents who would like to do the right thing, yet they are 

afraid to lose their job and their federal pensions 

Respectfully, 

Paul 

~R~ Babeu, Sheriff 

Pinal County, Ariwna 

cc 

U.S. Senator John McCain 

241 Russell Senate Office Building 

Washington, D.C. 20510-0303 

Fax: 202-228-2862 

ll.S. Congressman John Boehner 

1011 Longworth HO.B 

Washington, DC 20515 

Fax: 202-225-0704 

U.S. Senator Jeff Flake 

B85 Russell Senate Office Building 

Washington, D.C. 20510 

Fax: 202-228-0515 

971 Jason Lopez Circle Building C * P.O. Box 867 * Florence, AZ 851232 

Main (520) 866-6800 * Fax (520) 866-5195 * TDD (520) 868-6810 
33 

11 MOr~i\NDUM J'OI{: 

FROM: 

SUBJECT: 

DEC 0 8 20\0 

Jl\tlCI Nllf'!Ililltilo 

Sl'crdnry 

I '.,," n,~",". , "r n .... I_ S,,",I,! 

,,_, Il'~ <'''''. <W w:,,'_' .... n.' 11Ij.\ll 

~~ U,S. Immigration ~sJ and Customs ' " .. .. 4' Enforcement 

John 

()itl'~l.or 

bl);ltldiu;: 

MOllotl 

Expedite'" 

~ 

Re'llOvul lO Felon! Unlilw{"Uy inlne 

II il<:>~ ll'~S 

Thl~ mClrlorm,{]ulu o\lllirIC~ II proposal for ~ Th:IJI\r1m~nl or <lIllelnn d SeClority (OIlS) to 

c~p.1nd Ih~ 3pplienlioll of espc<lited IC!110vaJ (E(t) 10 eC1"1<1il1 nliens found Anywhere ill the Uniled 

SIMC'i who lillY.: ho.~ll ~nvklc<l of" ['dl)l1Y ufTCI\l!C, The nlltho,;ty to "ppJy EI{ LQ slich pCl'SOn$ 

cxiSl ~ by ~lIIte, provlJcd Ihey ha,,! been physically prcWI\! in Ihe United SlolcS (o r r~wer th:m 2 

yents 000 me present without hllvin~ bee11 ~dl1l ilted ur p:lttllcd, blltlhis C!l.iC'ISiun t,lfE(t would 

require 1\ fomt;,1 tlcs;;:nalinn by Ih~ Sccrelary uf Ilol11dand S~\'Urit)' revisinQ tllmonl [)HS poli<-')', 

lind ~n opprollri~I" flollec in Ihe p.:ticl"JI l\cj!ister, At prescllt, OHS policy reslrict! lllc 

11pplication of (I{ \0 li~n~ clK;(\lI1I(':I'~cJ "I pnrts of entry tlllamh,led by ~1~lll!e), pins nlien$ 

\'ltCUlll\tcred within 100 r milc~ ol"lhe bonier ~",J 14 days of enlry. and nlicllS \\Iho lU1'ived In 

(he Unil<"d 5lat~s by ~cu,\ 

LJ.S, InllnignniCl1 uilil C\l~lOn1S Enfnrc~mcnl (ICE) s!,eh Ihis ~~pnlllkcJ (,Ylhority 10 furlher ils 

cITor15 10 promote puhlie J;lfely Iho'\lgh ,Ilc 1)\"01",,1 i,lcntific"lioll and TemovJI orcrilnin:tl 

orrcndcC'll unJ~!"fully In the Uniled :;I;i\CS, The I1:ll1oVQI of cr;1I1inlllg is the iI;:~1~Y'~ hillhc~1 

immisn,(ioll ~nfnrcc",cnl pr;,uily but ;~ 1i1",led h¥ lhe n\:cncy's tletelu,nn re~llll cc.' antl 

incfficicl\dc$ in the \ld",inislrn,ive tc",(]Y;)1 process ot'lhc E~t~lItlve Ollie", for Immigration 

Review. Ikc(IU5C of Ihe,"", limilul;nl1s, ijmclH un e.~pa!\Sinn oL"IiR or lIlllUlkcd incrcnsc in the 

l1umbl'r ofiml11ign,ri,'njlldlle5, ICE willI'" lIlmltl" 10 h~mJlc Ihe gmwinll nu",ber of criminlll 

~liens;1 <'ltt()llIll= .... ilh,,<l1 n blldlld j,,~re'!IC or ~Intulol)' rel,I,,", 

Impormnlly. IC(· l'roll(>~' 10 extend Ihe " I'plkHli"n "filII (lilly 10 IdOlIS Ilninwlul)y 1'''-'5<:nl 111 

Itlc Unitl'tl SI'll~ ,m111101t!' ",i!\dcI\ Canur.l~, :thlulliGh ,tlu ~!ntllle ... Iml"d ~nllulih. Ih'l1 It ",oultl be 

J1I)~lhlc!1) 'H"'r 1llisdclll~~n:ul\s, " r indeed IU,)' cnIT"nl wi!l'!I\n i"'pectien t,r(.'Scnl fur f,,"'t:r Ilu," 

'N"''''''IlCSi.,,;olill, 11.\1<"" SubJ~ 1<1 E'I'<d.!"~ I(r."'M"llI",k. Se<""" H(h)(r)(~l(iii) "r,he 1"ImIS .. ,i.'ft ""d 

N"""""Ii,y ,\<1 , 67 I ...... , ""lI 68924 (N"" IJ, !M1); !lHit'IOlln, ,\Iit"; r. ... IL<p<J;led lIon,ay,I • .w r .... neg. 

.'U77 (JI"I- II, :>oo~), 'fhe " ;.",,e ,'xcl","',> r",,,, Ill( CIII"., ",~a ,1"" l.y .i, ~I ) P"" pr ~nlty, INJI ~ 

lJ5(bl\ I )(n, "'. u/,,, INJI ~ B ' eb)! j )1 ,\ 1("lh!!). 11,~ ~"<f"'i"(l;I'" .·'r""'i""' nf P.R '~I,Uc" ,;(rty i .. ",,, 10 ""'" 

Dh<> o"p(i';lly C(C'pl dliNn~ ."J ",11;'",,,(, or t'"", 
34 

Expanding Expedited Removal 10 Felons Unlawfully in the United States 

Page 2 

2 years. Broader expansions of the application ofER al this time, however, would raise 

additional policy concerns and probably trigger wider resistance or criticism. Additionally, any 

changes, including the one proposed, will mise constitutional due process concerns and present 

some litigation risk. 

Background: 

Section 235 of the Immigration WId Nationality Act (INA) directly applies ER 10 all arriving 

aliens delennined to be inadmissible for fraud or lack of proper documents. INA § 

235(b)(I)(A)(i). II also authorizes DHS, in the sole and unreviewable discretion of the Secretary, 

to apply ER to aliens who have not been continuously physically present in the United Slates for 

the 2-year period immediately prior to a determination ofinadmissibility if they are present 

without admission or parole. INA § 235(b)(l)(A)(iii). 

An ER order is issued after a careful officer interview and is not considered final until reviewed 

and approved by II supervisor. 8 C.P.R. § 235.3(b)(7). There is no further hearing or review 

unless the alien expresses a fear of persecution or torture or the intent to apply for asylum, in 

which case the alien is referred for an asylum officer interview. 8 C.P.R. § 235.3(b)(4). If the 

officer finds that the alien has a credible fear of persecution, the alien is referred for removal 

proceedings before an immigration judge. 8 C.i'.R. § 208.30(1). Although the potential statutory 

scope ofER is broad, by policy DHS presenlly applies ER beyond its statutorily mandated 

application to arriving aliens only to (I) aliens encountered within 100 miles of the border and 

within 14 days of their unlawful entry, and (2) aliens who arrived by sea.] 

Because of these policy limitations, ICE is not currently authorized to apply ER to the majority 

of criminal aliens who fall within the statute's permissible discretionary scope. Instead, ICE 

removes such aliens through the traditional immigration court process under INA section 240. 

This process can be lengthy and can involve prolonged detention and appeal. For example, 

aliens subject to ER are typically detained and removed within 12.75 days, while aliens subject 

to INA section 240 proceedings are detained and removed within 43.2 days. 

Discussion: 

Expanding ER to felons present in the United States for fewer than 2 years would advance ICE's 

focus on identifYing, apprehending, and removing convicted criminals.4 Expanding ER would 

substantially reduce detention costs, the amount of time an alien spends in custody prior to 

removal, and the potential for protracted litigation in individual cases. The proposal would allow 

the Executive Office for Immigration Review and ICE's Office of the Principal Legal Advisor to 

fOClls more resources on the cases oflawful permanent residents and aliens living in the country 

for an extended period. If those cases are adjudicated more quickly, lawful pennWlent residents 

will spend less time uncertain about the Qutcome of their cases, and aliens in removal 

proceedings will generally spend less time in detention. 

2 67 Fed. Reg. 68924. 

] 69 Fed. Reg. 48877. 

• Under this proposal, ER would not be applied to covered aliens convicted of aggrovated felenies, because they are 

already ,ubjectlO an expedited procedure, administrative remov.l, authorized by INA § 238. 
35 

Mr. GOODLATTE. My time has expired. 

And I now recognize the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

The Agency, Director Morton, has been accused of releasing thousands of detainees from its custody to score political points in ad-
36 

vance of sequestration. But based on what we have learned over 

the past week, it looks more like ICE was forced to tighten its belt 

beginning in January because it had been spending excessively 

throughout the fall to detain thousands of people more per day 

than its budget would allow. 

Can you put some further explanation onto this assertion? 

Mr. MORTON. Yes, Mr. Conyers. Let me just start out by setting 

the context here. There are about 350,000 people in immigration 

proceedings at any given time. The vast majority of those people 

are not detained, and that is by statutory design, that is, congressional design. Congress has directed the Agency to detain certain 

individuals by mandate. Those cases are known as mandatory detention. There are certain criminals and certain non-criminals that 

we must detain. And the rest of the system is designed for consideration of release on conditions. The Agency has that power, and 

it is also overseen by immigration judges who may redetermine the 

Government’s initial decisions by ICE. 

So the idea that, simply because a person is in the country unlawfully or they have a criminal conviction, they are detained is not 

true. In fact, the use of detention is the exception to the rule, given 

the number of people that are in proceedings. There are 350,000 

people at any given time. We have resources on the very best of 

days for about 34,000 to 35,000 people, and many of those people 

are not even in formal immigration proceedings. They are border 

cases through expedited removal. 

So we have to manage our budget, and our levels go up and 

down. Sometimes we are above 34,000; sometimes we are below. 

Sometimes we do not have enough space to take a particular person into detention, so we place them on an alternative to detention, 

a bracelet, a monitor or they have to call in. They are on an order 

of supervision. They have a bond. 150,000 people are on bonds 

right now in immigration proceedings. Some of them have criminal 

convictions; some of them do not. And that is by statute. That is 

by congressional design. It is exactly like the criminal justice system. In fact, the detention system for immigration actually has 

mandates that you do not see in the criminal justice system. 

Mr. CONYERS. That is a very thorough explanation that I find 

quite reassuring. 

You have been doing an outstanding job as Director for how long 

now? 

Mr. MORTON. I am about to come to the end of my fourth year. 

I will be the longest serving head of the agency ICE has ever had. 

Mr. CONYERS. Well, that is great. 

Can you explain how during the months of October, November, 

and December ICE was detaining 2,000 or 3,000 more people on 

any given day than it could afford through its budgetary circumstances to detain? 

Mr. MORTON. Yes, sir. So at the end of last year, we were operating at a very high operational tempo, in large part because one 

of the things I have tried to do: provide the Border Patrol much 

greater detention support. And so, for example, we are detaining on 

any given day 6,000 to 7,000 people in Texas for the Border Patrol, 

and we are then formally removing them through the ICE powers 

instead of simply voluntary returns. 
37 

That meant that at the end of the fiscal year, we were operating 

at quite a high level of detention, 36,000. If we had had full-year 

funding, we could have adjusted over time to make sure that we 

ended the year at 34,000 on average using whatever funds that we 

had. This particular year, we had a CR, and 2 to 3 months into 

that CR, it became clear that we were not going to have a good 

sense of what the remaining funding would be for the year, and it 

also became clear that sequester might, in fact, be a reality for us. 

And we had to do, as you said, some belt tightening. It meant releasing certain people so that we could live within our budget. 

Everybody remained in proceedings. Everybody is on some form 

of supervision. Our intent is still to remove them from the United 

States. We are reviewing all of the cases continually. If we made 

a mistake or there are new circumstances that suggest that somebody should come back into our custody, they will. And as the 

Chairman has already noted, we have made a handful of decisions 

already to return people to our custody, both level 1 and level 2 offenders. 

Mr. CONYERS. Thank you very much. 

I have been permitted one quick question as my time has expired. But we are only a few days away from the end of the CR, 

and we are more than 2 weeks into sequestration. Can you tell us 

any more about your budgetary outlook today? 

Mr. MORTON. I cannot, Mr. Conyers. I obviously hope that Congress passes a budget for ICE by March 27. I understand where 

some of the concerns come from. I understand that people wonder 

about some of the releases. I recognize that we are dealing in an 

extraordinary circumstance, where we had a CR for 6 months. We 

have a mandate from Congress to have a certain level of appropriated beds, and on top of that, we have a sequester from this 

very same United States Congress that says reduce your budget by 

5 percent. And our single largest appropriation of $2 billion is for 

custody operations. 

The next largest appropriation we have is for domestic investigations, and when I say domestic investigations, I mean operations 

along the Southwest border to go after drug dealers, alien smugglers, child pornographers, child exploitation. That is when I talk 

about robbing Peter to pay Paul. These are very real decisions that 

we have to make at the Agency, and we do the very best we can 

in a circumstance where our funding is uncertain at best. 

Mr. CONYERS. Thank you, Director Morton, and thank you, 

Chairman, for the additional time. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair now recognizes the former Chairman of the Committee, the gentleman from Texas, Mr. Smith, for 5 minutes. 

Mr. SMITH. Thank you, Mr. Chairman. 

Director Morton, under the Immigration and Nationality Act, 

aliens not subject to mandatory detention may be released on bond 

if, one, they do not pose a danger and, two, are likely to appear for 

any future proceeding. 

In addition to immigration law, you have the Office of Management and Budget directive to avoid actions that would, ‘‘raise life, 

safety, or health concerns.’’ 
38 

Under the document you gave us marked ‘‘sensitive material,’’ 

you say that you released 629 individuals in the criminal category. 

159 of those individuals had either been convicted of or charged 

with a felony or multiple misdemeanors. Do you not consider those 

individuals to be a threat to the safety of the American people? 

Mr. MORTON. I am, obviously, concerned about people who engage in criminal offenses in the United States while here unlawfully. That is why I have placed—— 

Mr. SMITH. But are the individuals who have been charged or 

convicted with a felony or multiple misdemeanors not a threat to 

the American people? 

Mr. MORTON. That is too simple a representation. If I might, Mr. 

Smith, let me give you a real example of one of the level 1 offenders we have released. 

Mr. SMITH. No. You are changing the subject on me. Do you want 

to answer my question or would you prefer not to? 

Mr. MORTON. It depends on the case. Generally speaking, I think 

that criminal offenders should be the Agency’s highest priority, but 

people have different circumstances. If you have a 40-year-old conviction, then that is different. 

Mr. SMITH. Let me answer the question—let me answer the question on behalf of the American people. I think the American people 

think that your releasing individuals convicted or charged with a 

felony or multiple misdemeanors is a threat to their safety. 

Now, these individuals whom you did release—did they all post 

bond? 

Mr. MORTON. Not all of them. The law allows us to release people 

on various types of supervision. 

Mr. SMITH. What percentage were released on bond? 

Mr. MORTON. I do not know the percentage. We are working to 

have an exact breakdown. We put about 180 individuals on the 

highest form of release, which is alternatives to detention. 

Mr. SMITH. I understand that. 

Let me follow up on a point that the Chairman made a while ago 

and that was his question about why you did not use the user fees 

in your reserve account which amounts to tens of millions of dollars 

and why you did not request from the appropriators the permission 

to reprogram. Your response was you wanted to live within your 

budget. But that does not have anything to do with living within 

your budget. If you redirect those funds to prevent you from releasing these individuals, you would still live within your budget. You 

are not asking for more money. You are just asking to transfer 

money from one department or account to another, and I do not understand why you did not do that if that would have enabled you 

to—prevented you from having to release these, I would call it, 

dangerous individuals. 

Mr. MORTON. So there are two issues. There is one using the 

funds that we were appropriated, and then the user fees of some 

unobligated balances. 

Mr. SMITH. Right. 

Mr. MORTON. We are—— 

Mr. SMITH. Whether you spend those fees or not has nothing to 

do with whether you balance your budget. That is the point. You 

could have used those fees and still claimed to balance your budget. 
39 

Mr. MORTON. No. We could have sought a reprogramming from 

the Committees. 

Mr. SMITH. Why did you not? 

Mr. MORTON. Because as I said, we want to live within the budget we were given. Our goal—— 

Mr. SMITH. But even if you had used those other funds, you 

would have been living within the budget and you might have done 

a whole lot to protect the American people from dangerous individuals. 

Mr. MORTON. No. I did not want to rob Peter to pay Paul from 

within the Agency’s budget. 

Mr. SMITH. Yes, I know. But that is my point. You are taking 

from one and putting it to another. That is not spending additional 

money. Robbing Peter to pay Paul is not going outside your budget. 

It is using the same amount of money. But we are going to disagree 

on that. I just think that you did not actually answer the question. 

Last year, you all requested, I think, detention beds for 1,200 

fewer than Congress provided. If you need more detention space, 

why did you not request more detention beds? 

Mr. MORTON. So the President’s budget asked for 32,800 detention beds. 

Mr. SMITH. Right. Congress provided 1,200 more, the 34,000. 

Mr. MORTON. And it also asked for an increase in alternatives to 

detention with language that would have allowed us to go back and 

forth, and supplement the hard beds, if we needed. 

Mr. SMITH. If funding were not a consideration, how many detention beds could you use? 

Mr. MORTON. Well, funding obviously is a consideration. We are 

at the highest level we have ever had—— 

Mr. SMITH. I know. The question was how many would you need 

if you wanted to provide total safety to the American people. 

Mr. MORTON. I am not trying to be difficult. You can only answer 

that question if you factor in alternatives to detention and how 

quickly can we move people through the system. 

Mr. SMITH. No, that was not my question. Do you have any idea, 

any concept of how many beds you would need if you were to satisfy all demands? 

Mr. MORTON. If I were to satisfy all demands—— 

Mr. SMITH. Legitimate demands. 

Mr. MORTON. If I were to satisfy all demands, you would be looking at an ICE with a budget that would be unsustainable. As you 

and I know—— 

Mr. SMITH. No, no. How many beds would you need? 

Mr. MORTON. How many beds would I need to detain and remove 

11 million people from the United States or more? 

Mr. SMITH. No. That was not my question. How many do you 

need to do to fulfill your job. In other words, you have 34,000. How 

many more would you need? 

Mr. MORTON. I mean, again that begs the question of what is my 

job and is my job to remove every single person who is here in the 

United States—— 

Mr. SMITH. Mr. Chairman, I do not think I am getting a direct 

answer. So I am afraid I will have to yield back. 

Mr. GOODLATTE. The gentleman yields back. 
40 

At the beginning of the hearing, I was not under the impression 

that the Chairman of the Subcommittee on Immigration and the 

Ranking Member had opening statements. In fact, they did and 

they both graciously agreed to put those in the record. But I wanted to jump ahead to recognize them in thanks for their forbearance 

on their statements. So I will now recognize the gentlewoman from 

California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Well, thank you, Mr. Chairman, and I agree that 

it was more important to go directly to the testimony than to hear 

our opening statements. 

I think part of the problem here, the confusion was the Secretary 

of Homeland Security’s statement, and I think the way it was 

taken was not that there was an overspending problem in the custody element but that somehow this was in reaction to the discussion of sequester. And then people felt, well, you know, we are 

being threatened, and if we go through sequester, then this will 

happen. And it just created a very bad impression. And I think 

that is part of what we are trying to deal with here, a 

misimpression that was created by that statement. 

If I understand—the Appropriations Committee gets, I think, almost constant reports on how many people are in detention and removal, and we have access to them as well. They give the number 

of people in custody who have gone through the system, not just 

the people who are in custody at midnight, which I think reflects 

the numbers that you gave to us in looking at this. And I would 

ask unanimous consent to put these into the record. 

Mr. GOODLATTE. Without objection, so ordered. 

[The information referred to follows:] 
41 

IlttOrd n a te il y Count as 

" 

" 

Ii, 

, , 

A~enoge Daily Popull tion of 

ThroughP"t 

it. 

~port 

Montb 

tho EnfOf<ement Inleplo'd Dallbouo (EIO). 

do", OJ./I (12~ll; EIO .. MOllIII2UIl). 

DUf ~le 

... d fu, '~I. rqIO<I.. .. ·ilt. .x,,,, ... d . .. th"'"th Ol"l.ctlOI] (liDS "..... 

" , ill 
42 

I{e<o rd t~ il y Count as 

orRI"'nro 

Report 

Montb 

SD""'~: All numb~","r'1: Jlu:reg~ l. d r""" m's DIlly Coon! Full S""'"c-lrId 

Todl""I"V,)' o.ly ,.pon._ 

Page 2 
43 

Ms. LOFGREN. For example, for September 30, it was 35,271. For 

October 31, it was 36,233. So as a matter of fact, you could go 

through. It was in excess of 34,000 every single day there was a 

report. And so it looks to me like you had an overspending problem 

that needed to be corrected. 

Here is the question. In our use of alternatives to immigration 

detention, is our standard substantially different than what is 

being used in State courts with people who are actually arrested 

for crime? For example, in Santa Clara County, we release people 

on ankle bracelets all the time because we need them to appear 

and the failure to appear rate is low. Is our standard much different than a locality? 

Mr. MORTON. It is not. We have a system that Congress has designed that operates just like the criminal justice system. There are 

decisions that have to be made as you go through immigration proceedings which, by the way, are not penal. They are administrative—as to whether or not someone should be detained. The Agency 

has a fair amount of discretion to set that initially, and then it is 

reviewed by judges, just as in the criminal justice system, who can 

set bond, can order you released, and in fact, do. That is the norm 

of the system is most people are released. 

Might I just say one thing on your comment with regard to the 

Secretary? 

Ms. LOFGREN. Sure. 

Mr. MORTON. The Secretary was talking about the potential effects of sequester. Obviously, that was a consideration for us. She 

was entirely correct in suggesting that sequester would have a significant effect on our ability to maintain the detention levels that 

had been appropriated to us. And again, I think she was trying to 

express the real concern—— 

Ms. LOFGREN. Well, if I may, I am not suggesting any ill motive 

on her part. I just think the way it was reported created a lot of 

suspicion, and that is why we are here trying to dispel those suspicions if there are facts to support that. 

You know, one of the things that I am mindful of—we know from 

the Department of Justice that the single most common Federal 

felony prosecution in America today—what do you think it is? It is 

not drugs. It is reentry after removal. That is a felony conviction. 

And it is the most commonly prosecuted Federal offense in the system. Obviously, we are not for people reentering after removal, but 

if that is the felony conviction, it certainly poses a different type 

of concern than if somebody is convicted of a crime of violence or 

something of that nature. 

Do you have the stats on if there were felons released, was it reentry after removal? Do you have the data on that? 

Mr. MORTON. We do. There were some immigration offenses, 

though not many. Most of the level 2s were either multiple 

misdemeanants or non-violent felons who did not qualify for an aggravated felony. Even of the four level 4s that are on the street, 

Ms. Lofgren, they are cases that are really challenging. I tried to 

give Mr. Smith an example and if I might give you an example. 

One individual who was released in Arizona has a conviction for 

theft offenses and drug offenses, and at first glance you might say, 

okay, what is ICE doing? That individual is 68 years old. They are 
44 

a lawful permanent resident, and they have been a lawful permanent resident for 44 years, and an immigration judge made a determination that that person was not a danger to the community. And 

that just goes to show you these are hard calls that have to be 

made on a case-by-case basis, and that is exactly what we have 

done. 

Ms. LOFGREN. Alright. 

Just one final question. The fee account has been mentioned, and 

you indicated you did not want to rob Peter to pay Paul. What use 

are those fees going to be made to, and could you not have taken 

the Operation in Our Sites funding and put it instead into detention? 

Mr. MORTON. So two things are going on. When I say that I do 

not want to rob Peter to pay Paul, I do not want to look to the 

other large appropriations to maintain detention funding above and 

beyond the appropriation that is given to us. Why? For very simple 

reasons. Our biggest appropriation is custody operation. Our second biggest appropriation is domestic investigation. And to put that 

into context, that means going after child pornographers, drug 

dealers, alien smugglers, export control violations, and that is an 

important part of the Agency’s work. 

Ms. LOFGREN. So you could have gone after the Operation in Our 

Sites funds. 

Mr. MORTON. I could have moved funds from our investigations, 

including those that you had some concern about. Yes, I could 

have. I did not elect to do that. 

The user fees are historical unobligated balances, and we are 

considering how to deal with that. They have certain restrictions 

on how they can be spent. They are not dedicated solely to detention funding, and that is something that we want to explore. 

Ms. LOFGREN. I see my time has expired. I thank the Chairman 

and yield back. 

Mr. GOODLATTE. I thank the gentlewoman. 

And the gentleman from South Carolina, the Chairman of the 

Immigration Subcommittee, Mr. Gowdy, is recognized for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Morton, I will tell you from this vantage point, it does look 

like the decision to release detainees was a political determination 

and not a monetary determination. It appears to me that the release of detainees was part of a sequester campaign that included 

the fictional firing of teachers, the closing of the White House for 

student tours, the displacement of meat inspectors, and now we are 

going to release some aggravated felons onto the street. 

Now, I have counted six times you have said you did not want 

to rob Peter to Paul. I do not want Peter or Paul to rob one of our 

fellow citizens because you guessed wrong on who to release. 

So what is a level 1 violator? 

Mr. MORTON. A level 1 offender—first, I obviously disagree with 

your characterization about these being political—— 

Mr. GOWDY. Well, that is fine. You can use your time to disagree 

with my characterization. Do not use mine. 

What is a level 1 violator? 
45 

Mr. MORTON. With regard to level 1 offenders, they are aggravated felons, as defined by Congress. 

Mr. GOWDY. And how many were released? 

Mr. MORTON. There are four presently. 

Mr. GOWDY. How many were released? 

Mr. MORTON. Eight were released. We have four presently. 

Mr. GOWDY. And what went wrong with the other four? 

Mr. MORTON. What is that? 

Mr. GOWDY. Why were there eight released and only four currently? 

Mr. MORTON. So two were released when the computer records 

were not correct, and we went back and we looked at them and we 

brought them back in. One was a mistake. 

Mr. GOWDY. What kind of mistake? 

Mr. MORTON. Just where the instructions to the field were not 

carried out correctly. 

Mr. GOWDY. Alright. So if it is $122 a day to house four level 1 

aggravated felons, then releasing them saves you what? About 

$600 a day? 

Mr. MORTON. Each day. That is right. 

Mr. GOWDY. You cannot find $600 anywhere else in your budget? 

Mr. MORTON. We make determinations on a case-by-case basis. 

We have got to—— 

Mr. GOWDY. Can you find $600 somewhere else in your budget? 

Mr. MORTON. The question is whether that $600 is well spent on 

those people or someone else, and when it comes to somebody who 

has been a 44-year lawful permanent—— 

Mr. GOWDY. I am not talking about the 44. Was he a level 1? 

Mr. MORTON [continuing]. And they are 68 years old—— 

Mr. GOWDY. Was he a level 1? Was he a level 1, Mr. Morton? 

Mr. MORTON. He is a level 1 offender. 

Mr. GOWDY. He was one of the four that you released? 

Mr. MORTON. Yes, he is released. That is right. 

Mr. GOWDY. Mr. Morton, who made the decision to release detainees as part of your effort to comply with sequestration? 

Mr. MORTON. The determination was made by Mr. Mead, the Executive Associate Director for Enforcement and Removal Operations, in consultation with the chief financial officer. 

Mr. GOWDY. Who is John Sandweg? 

Mr. MORTON. Mr. Sandweg works for the Secretary. 

Mr. GOWDY. Were there any conversations with him? 

Mr. MORTON. Not that I am aware of. 

Mr. GOWDY. Were there any conversations with the Secretary? 

Mr. MORTON. Not that I am aware of. I think the Secretary has 

noted that she was surprised and regretted the timing of notification, and I agree with that. 

Mr. GOWDY. If the release of aggravated felons does not rise to 

the level of something that the Secretary of the Department of 

Homeland Security should know about, what does rise to the level? 

Mr. MORTON. Listen, we release people every day, and the idea 

that we are going to review every single person that is released—— 

Mr. GOWDY. Do you release thousands of people every day? 

Mr. MORTON. We release thousands of people every month. We 

operate in a system—we had 470,000—— 
46 

Mr. GOWDY. But you do not blame it on sequestration, do you, 

Director Morton? 

Mr. MORTON. What is that? 

Mr. GOWDY. You do not blame it on sequestration when you release the others. It is not part of this strategy to get the public 

fired up that mayhem is upon us, that we are closing the White 

House for tours, that we are firing teachers in West Virginia. We 

are going to have to release level 1 aggravated felons because of sequestration. 

Mr. MORTON. First of all, that was never said. And the system 

allows for the release on supervision of people going through immigration proceedings. We are not detaining people for penal reasons, 

solely for purposes of removal. And as I have said, the vast majority of people in proceedings by statutory design are not mandatory 

detention—— 

Mr. GOWDY. Who are level 2 violators, offenders? 

Mr. MORTON. They are either multiple misdemeanants or felons 

that Congress has defined as something other than—— 

Mr. GOWDY. And DUI would be a misdemeanor. Right? 

Mr. MORTON. DUI—— 

Mr. GOWDY. First offense? How about second offense? 

Mr. MORTON. It depends on State law, but most times—— 

Mr. GOWDY. Well, how about the States where you release people? Did you release any recidivist drunk drivers? 

Mr. MORTON. Yes. 

Mr. GOWDY. How many? 

Mr. MORTON. I do not have the exact number, but we have released many individuals who had DUI offenses. 

Mr. GOWDY. Repeat offender DUI. 

Mr. MORTON. Repeat offender DUIs. Most of them were single offenders, but some would be DUIs. I would note for the record, Mr. 

Gowdy, Congress has not provided that a DUI is a ground of removal. In fact, most misdemeanors are not a ground of removal. It 

is the Agency, by Agency policy, that factors that in. I cannot order 

you removed for having committed a DUI—— 

Mr. GOWDY. No, you cannot, Director, but you certainly can request a programmatic rescheduling so you can move money around. 

And this notion that you do not want to rob Peter to pay Paul— 

you could have easily done that. You could have found $600 to keep 

these level 1 violators from being released and do not act like you 

could not have. 

With that, Mr. Chairman, I would ask unanimous consent to 

move in a document titled ‘‘Addressing CR Issue through March 

31st and Sequestration’’ from U.S. Immigration and Customs Enforcement. 

Mr. GOODLATTE. Thank you. 

Without objection, so ordered. 

[The information referred to follows:] 
47 

Mr. GOODLATTE. The Chair now recognizes the gentleman from 

Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Director Morton, there is a belief around here that budget cuts 

have nothing to do with your ability to perform your responsibilities. In fact, tax cuts have nothing to do with the budget. And so 

you have to just work with us on this. 

Is there an appropriate ratio for safety between staff and detainees? 
48 

Mr. MORTON. Yes. 

Mr. SCOTT. And if there is a budget cut, how does that affect that 

ratio? 

Mr. MORTON. Well, obviously, we have to maintain the facilities 

with the appropriation that we have. Were we to furlough individuals, that would affect our ability to apprehend and detain and remove people safely. I have indicated that my intention is to not furlough any of our officers. 

Mr. SCOTT. Well, if you have less budget, you will have less people, and therefore, you can retain fewer people. Is this arithmetic? 

Mr. MORTON. It is. The basic arithmetic is the single largest appropriation that Congress gives us is for custody operations, and 

the sequester directs us to take a 5 percent cut to that custody operations. That is roughly $110 million. And I cannot find that level 

of resource—— 

Mr. SCOTT. Well, I think what some are trying to tell you is that 

you can maintain a ratio with less money. But if you have less 

money, you have less people, and therefore you can detain fewer 

detainees. And we are talking arithmetic. It is not philosophy. 

A lot of the focus on the people released has been on their prior 

offenses. Can you explain to me what the recidivism rate—what 

the crime rate for those who have been released has been? 

Mr. MORTON. So far, I am not aware of any recidivism. Obviously, we are reviewing all of these cases. We maintain—— 

Mr. SCOTT. Excuse me. Of all the people you have released, how 

many crimes have been committed? 

Mr. MORTON. None that I am aware of so far. Obviously, it is a 

short period of time. We constantly review that. 

Mr. SCOTT. Well, criminal courts let people out on bail, and obviously some commit crimes. But you are unaware of any that have 

committed crimes? 

Mr. MORTON. Out of these 2,228, no. Listen, Mr. Scott, obviously 

we release people every day on some form of supervision. The statute provides that. Can I promise that every single one of those people is going to behave all year long? I cannot. We make the best 

judgments that we can. 

Mr. SCOTT. You cannot do it any more than a criminal court can 

promise that people let out on bail—— 

Mr. MORTON. Of course, not. I was a Federal prosecutor for many 

years before I came to the immigration enforcement business, and 

the exact same decisions are made. In fact, the immigration law is 

a little stronger. We have mandates in immigration law where in 

the criminal justice system there are only presumptions for certain 

detention cases. 

Mr. SCOTT. A suggestion has been made that your travel and entertainment budget would be sufficient to offset some of this. How 

much is your budget for travel and entertainment? 

Mr. MORTON. It is a tiny fraction of what would be necessary to 

cover this. 

Mr. SCOTT. So you could not cover these expenses by reducing 

travel and entertainment? 

Mr. MORTON. No. And we are doing that as part of the sequester. 

We have gone to mission critical only. No conferences. Our training 

is mission critical. The entire budget of the Agency, outside of do-
49 

mestic investigations and ERO, is $633 million, out of $5.8 billion. 

The math simply will not work with that remainder. 

Mr. SCOTT. And you have talked about a 68-year-old. Is the cost 

of detaining a 68-year-old, including health care, more or less than 

the average $122 a day? 

Mr. MORTON. Well, I would say I do not know this particular 68- 

year-old, but generally speaking, obviously we have some additional health considerations with people who are older. 

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

Mr. GOODLATTE. I thank the gentleman. 

The gentleman from Alabama, Mr. Bachus, is recognized for 5 

minutes. 

Mr. BACHUS. Thank you. 

Director Morton, one thing that disturbs me is this thing that I 

was supplied by ICE. It says, detention release is solely for budget 

reasons. Why would it not say detention reasons based solely on 

national immigration detention policy? 

Mr. MORTON. We are trying to be clear and accurate with everybody as to the releases that were for budget reasons only. We are 

releasing people all of the time, and I do not want people to think 

that we are mixing in people one way or the other. Again, the system calls for release every day. 

Mr. BACHUS. Okay. My point is this says that these 2,600 individuals were released solely for budget reasons. 

Why would you have not looked at 26,000 individuals in detention and found—it could have been 10,000 that you could have released? I mean, you should never release someone for budget reasons, solely for budget reasons. Would you not agree with that? 

Mr. MORTON. No. We have to manage our budget every year. 

Mr. BACHUS. Something more important than budgets is the immigration detention policy. I mean, that is what you are here to enforce, not to incarcerate people. You are here to try to determine 

how many people should be detained. 

Mr. MORTON. No. My principal job is, on the immigration side— 

and people forget that there is a lot about ICE that is not about 

immigration enforcement. But focusing on the immigration enforcement, my job is to do the best I can to remove people who are here 

unlawfully from the United States, not to detain them, to remove 

them. 

Mr. BACHUS. Right, okay. I think the immigration policy of the 

United States is to—as far as detention goes, is to detain people 

where there is not a reasonable alternative. Would you agree with 

that? 

Mr. MORTON. Generally, that is the way the statute is set up. 

Mr. BACHUS. Or you mentioned mandatory detentions also. But 

out of that 26,000—what I am saying you said these detention releases were made for budget reasons, and there is really no threat 

to public safety as a result of those. 

Mr. MORTON. I said that—— 

Mr. BACHUS. Or very little. 

Mr. MORTON [continuing]. We focused the releases on those people that we felt posed the least—the threat to public safety was not 

a significant risk. 

Mr. BACHUS. But why? 
50 

Mr. MORTON. But what you are getting at is—if your question is 

do I have enough people, do I have enough resources to detain and 

remove 11 million people, the answer is no. 

Mr. BACHUS. No, no. My question is perhaps are you overusing 

detention. 

Mr. MORTON. At the beginning of the year, we were maintaining 

a higher level of detention than we were appropriated for over an 

annual—— 

Mr. BACHUS. No, no. Let’s not talk about dollars and cents. Let’s 

talk about individuals who are being detained. Surely instead of 

doing a cost analysis, why do you not do a risk assessment on that 

population, those being detained? How many of them could be released to family members? How many of them periodically would 

check in, even some maybe GPS? Although I would think that 

there are ties with the United States. You know, we have got some 

that have been adopted as children. I do not think they are going 

to run away. Are some of those mandatory detentions that you 

could recommend to Congress they not be? 

I am just saying it looks to me like maybe there is an overuse 

of detention by this Administration. Now, I know that totally— 

would you agree? Okay. If these people are not public safety risks, 

if they are not violent, if they do not have a criminal history, if 

they are not repeat offenders, if they are going to show up for proceedings, why are they detained at all? I mean, surely out of this 

26,000, you could have found 3,000 or 4,000 that—are there not 

3,000 or 4,000 that would not—— 

Mr. MORTON. I think your basic sentiment, which is detention 

should be made based on risk of flight and—— 

Mr. BACHUS. Well, public policy, and that ought to be risk of 

flight, you know, violent offenders. I consider DUI’s—I would say 

DUI. 

But what I am saying—this almost to me is that you are saying 

we have got too many people in detention. 

Mr. GOODLATTE. Would the gentleman yield? 

Mr. BACHUS. Yes. 

Mr. GOODLATTE. In the report prepared by the Committee staff, 

there is a statistic in there that shows that 770,000 people who 

were released did not return for their deportation—— 

Mr. BACHUS. I understand that, but I would say this. You could 

look at most of those people and there are predictors of whether 

you—— 

Mr. GOODLATTE. We are trying to deport them. If you release 

them and they never show up for their deportation proceeding, they 

are probably not getting deported. 

Mr. BACHUS. Well, what I am saying—and I am not arguing, but 

if I accept—and I think most of these people are probably not going 

to go back. If they do go back, they are coming back legal or illegal. 

What the Chairman is saying is that 40 percent of those people 

that are not detained in the first place do not reappear for their 

removal hearing. And you know, include someone that does not 

show up—you know, maybe detain them. But if they were never released or if they were released and showed back up and they are 

not a flight risk and they are not a threat to public safety—and I 
51 

will go to budget now—why are we spending $164 a day on it? I 

am just saying—— 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. BACHUS. This maybe is not the message here, but maybe 

there is an overuse of detention. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. GOODLATTE. The time of the gentleman has expired. 

The Chair recognizes the gentlewoman from Texas, Ms. Jackson 

Lee. 

Ms. JACKSON LEE. Let me thank you very much to the Chairman 

and Ranking Member for this informational hearing. 

Director Morton, I have always thought of your basic commitment to the security of this Nation and might I say that I appreciate the work that your office does, the work that you all do in 

Washington, D.C. And I know that if I might use a certain American phraseology, you are caught between a rock and a hard place. 

So I would like to pointedly just restate what I thought you said 

and that is you are responding to the sequester, which is an acrossthe-board 5 percent cut, which resulted in $110 million that you 

had to address, and that most of your appropriations comes into 

the custodial appropriations. 

So I am going to answer my own question. Then I am going to 

pose it to you. Obviously, we need a policy change that balances 

the responsibilities of ICE between custodial and other work, which 

then generates the employment or the FTE’s that you may need to 

do other things, human trafficking, issues that I am very interested 

in. 

But I also appreciate the fact that in the recent order of, I guess 

a year, the executive emphasized to your office to prioritize individuals who could be, in essence, at a lower priority for detainment. 

So when we mention this issue of detaining persons, I think it 

is important to note that you are following a policy supported 

somewhat by law that either Congress has set over the years 

through immigration policy. I think that should be clear. 

So let me ask some specific questions. One, there are about 771 

that you released in the State of Texas, 240 in Houston. Can you 

give me a sense of what the offenses of those individuals were? It 

is my first question. I will let you answer that, along with any comment on the policy. And I am going to interrupt you because I have 

some other questions if you do not mind. Thank you. 

Mr. MORTON. On Houston, there were 134 non-criminals and 

then there were no level 1 offenders whatsoever in Houston or the 

State of Texas. That is true for almost every State represented here 

today. In fact, that is true for most level 2s as well. In Houston, 

we had 59 level 3 and 47 level 2. 

With regard to your comment on the policy and the statute, you 

are right. At any given moment, about a half to two-thirds of the 

people that we detain are mandatory detention. Congress has just 

told us people in these categories must be detained. And the rest 

are discretionary. And that has largely built up over time to be a 

policy focused on criminal offenders, recent border entrants, or people who have seriously gamed the system. 

Again, you have to look at people’s individual circumstances. It 

is why immigration enforcement is so challenging. It is very easy 
52 

to make simple statements about non-criminals, simple statements 

about criminals. But then you realize sometimes a criminal can 

mean somebody who is 28 years old and they have committed a terrible sexual assault, and sometimes it can mean somebody who is 

68 years old, has been here for 44 years, is a lawful permanent 

resident, people who have children. And that is why it is challenging, and our officers have to make those decisions every day, 

the best they can on the facts they have, and you cannot make 

sweeping generalizations or determinations either by statute or by 

policy. 

Ms. JACKSON LEE. Well, the question has become bipartisan, Director Morton, on this issue of whether we are detaining too much. 

I appreciate both the Chairman and the Ranking Member, I am 

going to offer that we do a bipartisan bill that further assists you 

in codifying what was done by an executive order because my next 

line of questioning is, as someone who deals with these issues, I am 

concerned about detaining people that, frankly, obviously are being 

hurt. 

For example, a young man by the name of Marco—and I would 

like to get a response—was someone who was held for 4 months. 

He was innocent. Nothing more than he was someone who came 

here and not being documented, had not done any offense. He was 

here, left behind. His father was deported. He was the only support 

for his family. He is being held. We spent 4 months holding him. 

No offense, nothing. 

Another woman was a victim of domestic violence, and she had 

been denied asylum and refugee status. We held her while she was 

trying to get bond counsel. 

My question to you is—as you well know, the American Civil Liberties Union are in our offices about these individuals. They are 

probably level 0 to a certain extent in terms of not being offensive. 

Can you just tell me how you can work better on these kinds of 

cases and work better with the ICE regional offices which, with all 

of their great service, sometimes detains, detains, detains? 

Mr. MORTON. I am happy to look into the two particular cases, 

and I will ask the staff to do that. 

The broader challenge is using the resources that Congress gives 

us for detention as wisely as we can. And a big part of the answer, 

frankly, I think is comprehensive immigration reform. You are 

right. The Agency is between a rock and a hard place a lot of times. 

We are charged with removing 11 million people from the United 

States and that number is obviously beyond our capability and appropriations to carry out, and for many of the very long-term residents, frankly it does not make any sense either as a matter of policy. 

So what do we do? We take the appropriations that we get, 

which is enough for about 400,000 removals a year, and we try to 

focus those removals as best we can on priorities that make sense 

for the country. 

Mr. GOODLATTE. The time of the gentlewoman has expired. 

Ms. JACKSON LEE. Thank you. 

Mr. GOODLATTE. We have a vote pending, but we are going to try 

to get one more question in, and so the Chair recognizes the gentleman from Virginia, Mr. Forbes, for 5 minutes. 
53 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Morton, you have testified that the decision to release this 

2,228 individuals was yours and yours alone, that you had no suggestion, conversation, memo, order, or communication of any kind 

from anyone outside the Agency. Is that your testimony here 

today? 

Mr. MORTON. That is right. 

Mr. FORBES. Once you have made a decision of that magnitude, 

did you communicate that to the Secretary, anyone on behalf of the 

Secretary, to OMB, anyone working for OMB, or anyone at the 

White House or working for the White House after that? 

Mr. MORTON. No. The—— 

Mr. FORBES. Just yes or no, Mr. Morton. I do not have much 

time. 

Mr. MORTON. The answer to that is no. And I have said I regret 

both with regard to—— 

Mr. FORBES. That is alright. I just need the facts on that. 

The other thing that Mr. Gowdy pointed out, the reason this is 

so suspicious is not just the act, but the timing of the act. We know 

that OMB had issued gag orders on many agencies not to talk 

about sequestration. We know the Department of Defense had that. 

And you issued this decision in February when the campaign to 

talk about sequestration was undertaken by the President. 

But I want to take you back to December and November of 2012. 

You bragged about the fact you have been there for 4 years. As you 

know, sequestration was passed in August of 2011. You had a year 

or so to look at that. Every mathematical fact and statistic that you 

have would have been exactly the same in November and December. In fact, no one in this room knew that sequestration was going 

to be postponed from January 1 to March 1 until January 1. 

Why did you not make this decision in November or December 

of last year? 

Mr. MORTON. First of all, the principal decisions were made by 

the career officials. It was not my personal decision. 

Mr. FORBES. Why did they not make them in November or December of last year? 

Mr. MORTON. I supported and approved this decision, but the decision itself was made by the people who run—— 

Mr. FORBES. But why did they not do it last year? All the same 

statistics, all the same monetary budgetary issues, everything was 

present last year that was present in February of this year, and yet 

you waited to February to make that decision. 

Mr. MORTON. Where are we? We are at an average of 34,000 

beds. 

Mr. FORBES. You were at the same averages last year. 

Mr. MORTON. That is right, but it goes up and down all of the 

time. 

Mr. FORBES. No, no. But that projection was the same last year. 

You are not in a cyclical point in December where you could not 

project this was going to be the same kind of forecast, could you? 

Mr. MORTON. Last year, we had a full-year appropriation—— 

Mr. FORBES. I am talking about December of last year, Mr. Morton. You had the same exact appropriations that you are looking 

at now. 
54 

Mr. MORTON. December of the fiscal year prior to this one. 

Mr. FORBES. Of 2012. Let me move on because the bottom line 

is you do not have an answer for that. 

Let me ask you this question and see if you have an answer for 

this one. On the individuals, this 2,228 people you released, were 

any of them members of a violent criminal gang? 

Mr. MORTON. I think there are two cases, at least one that I 

know of, that when we went back and looked at the information, 

there was a gang affiliation. That person is—— 

Mr. FORBES. Do you ask the individuals that you are detaining 

whether they are members of a violent criminal gang or not? 

Mr. MORTON. We try wherever we can to—— 

Mr. FORBES. No, no. That is not my question. I mean, is that 

part of your questioning? Do you have that information on the people that you released? 

Mr. MORTON. I do not know if we ask each and every person we 

detain. 

Mr. FORBES. So then you cannot really answer for the 2,228. All 

you can say is that you know that two of these individuals had a 

gang affiliation, but you do not know whether any of the other 

2,228 had a gang affiliation or not? 

Mr. MORTON. I cannot speak to every person we detain. No, I 

cannot. 

Mr. FORBES. So then it is possible that we released someone who 

was here illegally who had been charged or convicted with a crime 

and could have voluntarily been part of a violent criminal gang. 

You would not know that. 

Mr. MORTON. On the convictions, yes, we would. 

Mr. FORBES. I said charged or convicted. 

Mr. MORTON. Yes. So I am saying on convictions, we would. On 

just general gang affiliation, I cannot say that we would know—— 

Mr. FORBES. Let me ask you this question. On the aggravated 

felonies that you talked about, I am looking at the list here, and 

I am just running through a couple of them. But no one on that 

list was charged or convicted with murder, rape, or sexual abuse 

of a minor, were they? 

Mr. MORTON. They were not. 

Mr. FORBES. Was anyone charged or convicted of illicit trafficking 

in a controlled substance? 

Mr. MORTON. There were some with drug offenses. The individual I mentioned earlier who is 68 and a lawful permanent resident. 

Mr. FORBES. Were any of them involved in child pornography? 

Mr. MORTON. Not of the ones that I am aware of that were released, no. 

Mr. FORBES. So of the 2,228, you can testify that none of them 

were involved in child pornography? 

Mr. MORTON. To the best of knowledge, I can testify the answer 

is no. 

Mr. FORBES. Well, to the best of your knowledge just means that 

you do not have any knowledge of it now. Have you reviewed that 

or can you testify that none of them were? 
55 

Mr. MORTON. I can tell you that I have reviewed the summaries 

of all 2,228. I have not looked at the actual conviction records personally on such a number. I have not looked at every—— 

Mr. FORBES. Can you answer me this question? Because my time 

is about out. What time frame are these individuals to report back 

where somebody can actually lay eyes on them and say that we 

know that they are complying? Give us those time frequencies and 

what percentage of them have started reporting back. 

Mr. MORTON. It depends on what sort of release you are put on. 

If you are on ATD, it can be as often as every week, and plus you 

have your bracelet. So it is constant monitoring. If you are on an 

order of supervision, it can depend. It can be monthly. It can be 

weekly. It can be quarterly. The same is true of an order of recognizance. Obviously, with a bond, you are dealing with a financial 

obligation that you must address. There is some combination of the 

two, too. We have the power to—— 

Mr. FORBES. So some of them you have as far as—— 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. FORBES. I will yield back. 

Mr. GOODLATTE. I thank the gentleman. 

Director Morton, we will have to stand in recess for a vote. So 

the Committee will reconvene as soon as the votes conclude. 

[Recess.] 

Mr. GOODLATTE. The Committee will reconvene. 

And the Chair recognizes the gentleman from Georgia, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Morton, in your department’s 2012 and 2013 budget requests, did you oppose the inclusion of statutory language mandating ICE to maintain a level of at least 34,000 detention beds per 

day or per night? 

Mr. MORTON. The President’s budget did call for a lower number, 

32,800, and called for a level of flexibility that was ultimately not 

adopted by the Appropriations Committee. 

Mr. JOHNSON. Now, is the 34,000 detention beds that were 

passed or were mandated by this Congress—are those mostly in 

the private, nonprofit prison system? 

Mr. MORTON. It is a mix of—— 

Mr. JOHNSON. It is not private, nonprofit, but private, for-profit 

prison system. 

Mr. MORTON. Yes, sir. It is a mix. We run a very small number 

of facilities ourselves. 

Mr. JOHNSON. How many beds? 

Mr. MORTON. I would say maybe in our facilities a maximum of 

a couple of thousand. 

Mr. JOHNSON. So you have got 32,000-plus that are housed in 

private, for-profit, corporate-run prison facilities. Is that correct? 

Mr. MORTON. Not entirely. We also contract with State and local 

governments. 

Mr. JOHNSON. If those beds are unfilled, is there still a requirement that the Federal Government pay the private contractor? 

Mr. MORTON. Yes. Many of our contracts require a minimum 

floor, and then depending on the particular contract, obviously if 
56 

we use more of the minimum floor, we pay for that as well. We do 

our very best not to have empty beds. 

Mr. JOHNSON. It is kind of like you want to fill the beds up so 

that you will not be paying for something that you are not using. 

Is that not correct? 

Mr. MORTON. That is correct. Obviously, if Congress appropriates 

us money, we need to make sure that we are spending it on what 

it was appropriated for. 

Mr. JOHNSON. And so we got a guaranteed payment to private, 

nonprofit corporations like Correction Industries of America, among 

others. Excuse me. Yes, Corrections Corporation of America, which 

is the largest private prison company in the country. 

Now, you do, in law, have the flexibility to provide alternatives 

to detention to certain classes of detainees. Is that not correct? 

Mr. MORTON. Yes, sir. 

Mr. JOHNSON. You have the right to release them on bond. 

Mr. MORTON. Yes, sir. 

Mr. JOHNSON. And that is in fact what you did with the 2,228 

persons that were released, which is the subject of this hearing. 

Correct? 

Mr. MORTON. That is right, and we do that every day with other 

people as well. 

Mr. JOHNSON. Now, how much does a detention bed cost per day? 

Mr. MORTON. It depends on where you are in the country, but on average, we calculate it is $122 a day. 

Mr. JOHNSON. I have heard reports of up to $166 a day for housing, health care costs, and guard costs. 

Mr. MORTON. That is correct, particularly if we are, for example, 

in the Northeast. If you are detaining people in New York City, it 

obviously costs a lot more than it costs to detain somebody elsewhere. 

Mr. JOHNSON. Well, using the average $166 a day times 34,000 

detainees, we are guaranteeing to the private prison industry about 

$5.6 million per day—$5.6 million per day. Are you familiar with 

that? 

Mr. MORTON. Well, again, I would note that there are other partners that we work with. We have State and local governments that 

provide us and then we do have some of our own contracted detention facilities. But do we have a dedicated appropriation for those 

beds? Yes. 

Mr. JOHNSON. It is about $5 million a day. 

Are you familiar with the ALEC group, the American Legislative 

Exchange Council, which proposes State laws that enable States to 

fill the prison beds that we are discussing today? 

Mr. MORTON. I am not, sir. 

Mr. JOHNSON. You are not? But you would not be surprised if 

Corrections Corporation of America was a member of ALEC, along 

with thousands—70 percent of the legislators in the country. Would 

you be surprised to learn that? 

Mr. MORTON. I am just not aware of that particular group. I am 

aware of—— 

Mr. JOHNSON. So you are unaware of a mandate from corporations to the Federal Government to supply them with a fixed number of beds—i.e., profit—per day. And we do not even monitor these 
57 

private corporations in terms of the health, safety, and well-being 

of the detainees. 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair recognizes the gentleman from Iowa, Mr. King, for 5 

minutes. 

Mr. KING. Thank you, Mr. Chairman, and thanks, Director, for 

your testimony here. 

I am looking at some numbers that I heard earlier in the testimony, 2,228 detainees released, and of those, 1,599 non-criminals. 

Can you tell me if any of the non-criminals had orders of removal? 

Mr. MORTON. I do not believe so, but we can check. But my initial assessment would be they do not. 

Mr. KING. And of the 629 criminals, how many of those had orders of removal? 

Mr. MORTON. I do not believe any of them had final orders of removal, although there was one case that involved somebody who 

had very severe mental issues, and that one person may have had 

an order and is the subject of some litigation that we are involved 

in. 

Mr. KING. Could you tell me how many of the 1,599 non-criminals and the 629 criminals fit under the category of mandatory detention? 

Mr. MORTON. None of the individuals that the field was directed 

to release could be mandatory detention. As I noted earlier, in further review, we have determined that there were some cases released that should have been mandatory detention when we looked 

at the record, and we pulled those in. But as a general rule, obviously a mandatory detention case must be detained. 

Mr. KING. That is roughly 8 or 10? That is the kind of number 

we are talking about that may have been mandatory detention that 

were released? 

Mr. MORTON. There will be four out of the level 1 offenders that 

we brought back in, and there will be—out of the level 2s, I think 

there will be less than a few dozen brought back in for a variety 

of reasons. 

Mr. KING. But you would not have granted a release of anyone 

knowingly in the list of those who were mandatory detainees? 

Mr. MORTON. No. That would be unlawful. 

Mr. KING. So, therefore, that list that I heard from Mr. Forbes, 

murder, rape, sexual abuse, drug trafficking—you said a yes to 

drug trafficking. Would that not fit under the category of mandatory detainees? 

Mr. MORTON. So there is some drug offenses—so, for example, 

possession—that are not mandatory detention in every case. Drug 

trafficking, depending on the State law—— 

Mr. KING. There were no drug traffickers released? 

Mr. MORTON. Not that I am aware of. 

Mr. KING. Okay, and no firearms traffickers either that you 

know of or—— 

Mr. MORTON. No firearms traffickers. 

Mr. KING. Or money launderers? 

Mr. MORTON. No money launderers. 
58 

One point to be clear on. Separate from these budgetary releases, 

there are times when we must release someone with a serious 

criminal record based on a Supreme Court case that says that if 

the Government is unable to remove people, we may not detain 

them indefinitely. 

Mr. KING. Not making that the issue, though, it is your position—and I hear it here clearly—that you would not knowingly release anyone who is a mandatory detainee other than giving deference to the Supreme Court case. 

Mr. MORTON. Yes. 

Mr. KING. And with the request of the letter that was issued by 

Chairman Goodlatte and Senator Grassley for the list and the details of those who fit within those categories I have mentioned of 

the 2,228, you will provide that at their request? 

Mr. MORTON. We have already provided a summary to the Committee, and we are happy to continue to work on further details. 

Just to give some flavor to it, Mr. King, occasionally we will deal 

with someone who has terminal cancer or, you know, there is an 

extraordinary circumstance. But generally, when the Congress says 

that something is mandatory, we view it as mandatory. 

Mr. KING. Well, I appreciate that. 

And when you looked at your options of releasing these 2,228 

into the streets of which 629 are criminals, what was the rationale? 

If you needed to free up your budget, why did you not just go 

ahead, those who were adjudicated with deportation, remove them, 

or accelerate that process so you could remove them and relieve 

your budget in that fashion, release people into the streets of their 

home country rather than into the streets of our home country? 

Mr. MORTON. We are doing everything we can to remove people. 

So I do not believe there were any removal cases that were ready 

to go that we delayed on. 

Mr. KING. But why did you not accelerate that as another option 

rather than releasing people into the streets? 

Mr. MORTON. We go as fast as we can. I am not aware of any 

power that we had to accelerate—— 

Mr. KING. Did you consider that as something you might want 

to develop, an ability to accelerate the removal so that you could 

free up your budget and not release people into the streets? 

Mr. MORTON. Well, I am a supporter of trying to make sure that 

immigration proceedings proceed in a timely fashion. We have 

number of proceedings that take too long, and if we were to be able 

to shorten them, I think we could—— 

Mr. KING. Let me just ask you. If an ICE agent encounters an 

individual that is unlawfully in the United States, let’s say, within 

a jail and that individual is guilty of less than three misdemeanors, 

can they arrest that person and place him in a deportation? How 

would your management deal with an ICE agent like that? 

Mr. MORTON. So if the person has less than three misdemeanors, 

with some exception for drug offenses, most misdemeanors are not 

an independent ground for removal. Now, if they are here unlawfully, however, that is a ground of removal, and we obviously take 

into account—— 

Mr. KING. Do you encourage your agents to do that? 

Mr. MORTON [continuing]. Misdemeanor offenses. 
59 

Mr. KING. Do you encourage your agents? 

Mr. GOODLATTE. The time of the gentleman has expired. I will 

allow the gentleman to answer the question and then we will move 

on. 

Mr. MORTON. We focus on criminal offenders. It depends on what 

the underlying record is. I mean, in your scenario where someone 

has three misdemeanor convictions, generally the presumption 

would be we take a serious look at that person for removal 

Mr. KING. Thank you, Director. 

Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

It is my understanding the gentlewoman from California has a 

unanimous consent request. 

Ms. LOFGREN. Yes, Mr. Chairman. I would like unanimous consent to place into the record statements from nine groups, including the Lutheran Immigration and Refugee Service. 

Mr. GOODLATTE. Without objection, those statements will be 

made a part of the record. 

[The information referred to follows:] 
60 

ACLU 

AMERICAN CIVIL LIBERTIES UNION 

WRITTEN STATEMENT OF 

THE AMERICAN CIVIL LIBERTIES UN ION 

For a Hearing 0 11 

The Relellse of Crimi'HII Delaiures by U.S. Illlinigrll lioll :wd e llSlOlllS Enfor cemcllI: 

Policy or Polilits? 

Suhmitied to the U.S. n Ollse of Rellresenlnli\'cs COllln_jltre on the .ludicia ry 

March 19, 2013 

ACLU Wllshingtorl Legishuive Office 

Laura W. Murphy, Director 

l oanne Un, Legislati ve Coti llSel 

Christopher Rickcrd. Policy Counsel 

ACLlJ Imll1igraolS' Rights Project 

Judy Rabinovitz, Deputy Director 

Michal'! Tan. StatT Attornoy 

Dl'Of Ladin, Fell ow 

Mo!ly Laulerback, Paralegal 
61 

I. Introduction 

The American Civil Liberties Union (ACLU) is a nationwide, non-partisan 

organization of more than a half-million members, countless additional activists and 

supporters, and 53 atliliates nationwide dedicated to preserving and defending the 

fundamental rights of individuals under the Constitution and laws of the United States. 

The ACLU's Washington Legislative Otlice (WLO) conducts legislative and 

administrative advocacy to advance the organization's goal to protect immigrants' rights. 

The Immigrants' Rights Project (JRP) of the ACLU engages in a nationwide program of 

litigation, advocacy, and public education to enforce and protect the constitutional and 

civil rights of immigrants, including those detained by U. S. Immigration and Customs 

Enforcement (ICE). 

The ACLU submits this statement to the U.S. House of Representatives 

Committee on the Judiciary on the occasion of its hearing addressing the recently 

reported release of 2,228 immigration detainees from ICE custody.l The ACLU lacks 

complete information about how release decisions were made in individual cases, and the 

specific conditions under which detainees were released. However, ICE Director John 

Morton testified last week before the House Appropriations Homeland Security 

Subcommittee that the releases "focused on aliens who were not subject to mandatory 

detention and ... did not pose a significant threat to public safety"Z Of those released, 

according to Morton, 70 percent had no criminal record at all, and the remaining 30 

percent had minor convictions that were not for serious violent crimes 3 That ICE 

determined these individuals could safely be placed on supervised release raises a 

fundamental question, posed among others by Secretary Janet Napolitano herselr: why 

were these individuals detained in the first place? 

The ACLU firmly believes that curtailing our immigration prisons is urgently 

needed as a fiscally responsible measure that would also improve the immigration 

enforcement system's respect for our nation's fundamental commitments to liberty and 

due process of law. Releases based on an assessment of who must be incarcerated, as 

opposed to supervised effectively in the community, are a step in the right direction. 

Indeed, the ACLU has long contended that ICE is detaining thousands of individuals 

whose complete loss ofliberty is not actually necessary-either because they pose no 

danger or flight risk, or because alternative forms of supervision are available. These 

1 nrian nenneti, Immigration officials adrnit releasing thousands a/detainees, Los Angeles Times (Mar. 

14,2(13), available at http://www.latimes.com/news/nationworldJnation/la-na-immigration-relcases20l3031S,O.SgOl719storv 

'Immigration rcnforceme~t: Hearing Refore the Suhcmnm. on Homeland Security of the H Cmnm. on 

Appropriations, II lth Cong. (2013) (statement of John Morton, Director, Immigration and Customs 

Enforcement (ICE)). 

Jld 

4 See Jim Avila and Serena Marshall, "Homeland Security Secretary Janet Napolitano Regrets Surprise 

Announcement ofInunigranl Release." ABC News (Feb. 28, 2013), available at 

http:// a bcnews. go. emIl/To 11 tics/homeland -Security -sccrdarv -i aHe! -11;] politmhJ-regrcts-ti mingimmi~'Tan[/storv'7i,k I R62271 I ("When asked why the detainees were in jail in the first place, Napolitano 

replied, "That's a good question. I've asked the same question myself ... so we're looking into it"). 

2 
62 

alternatives serve the government's purposes at significantly less cost to taxpayers and 

less hardship to immigrants and their communities. 

As detailed below, immigration detention is enonnously expensive, costing 

approximately $2 billion in fiscal year ("FY") 2012, at a time oflengthy and persistent 

tiscal crisis. Yet because ICE's detention budget is tethered to an intlexible mandatory 

bed quota, this money is largely wasted on locking up 34,000 men, women, and children 

every day who, in many cases, do not need to be incarcerated to achieve the 

government's goals. In addition to the serious constitutional concerns raised by the 

widespread use of unnecessary detention, the bed mandate guarantees the waste of scarce 

federal budgetary resources. ICE's budget should instead encourage the use of effective 

alternatives to detention (" ATDs"), which, as long recognized in the criminal justice 

context, are effective and available to meet the government's interests in preventing tlight 

risk and ensuring public safety-at a fraction of detention's prot1igate costs. 

Reducing detention-through the use of careful risk assessment, appropriate 

conditions of supervision, and other measures to ensure that ICE limits detention to cases 

where it is necessary-is critical to tiscal responsibility and will aid in bringing 

immigration detention into compliance with constitutional requirements. The ACLU 

therefore recommends that Congress: (I) eliminate any mandate that ICE maintain and 

fill a fixed number of daily detention beds so that the agency detains only where 

necessary; (2) pennit ICE flexibility to use its detention budget on A TDs that have been 

proven effective in ensuring appearance for court proceedings and removal, and 

appropriate additional funds to ATD pro!,'Tams and pilot projects; and (3) prohibit the use 

of appropriated funds for detention except where ICE has determined, based on a uniform 

risk assessment, that no condition or combination of conditions of release would be 

sufficient to address an individual's dangerousness or flight risk, and where this 

determination is subject to review by an Immigration Judge. 

I. The Rapid and Costly Expansion of Immigration Detention Has Been 

Abetted by Congress's Mandate that ICE Maintain a Specified Bed 

Count Regardless of Operational Needs, a Quota that is Fiscally 

Irresponsible and Needlessly Incarcerates Immigrants. 

Immigration detention has grown at an irrational and wasteful rate. Over the last 

15 years, detention levels have more than tripled-from 85,730 detainees in 19955 to an 

all-time high of 429,247 individuals in FY 2011 6 In FY 2011, ICE held an average daily 

population of 33,034 individuals in more than 250 immigration prison facilities 

nationwide7 The men, women, and children ICE put behind bars include survivors of 

5 Dons Meissner el a!.. immigration F:nforcement in the United States: The Rise of a Fonnidahle 

A1achinelY, Migration Policy Institute, (Jan. 2013), 126, available at 

http://w1y\v.migratiolltJolicy org/pllb:-./enforCClneHtpillars.ndf 

6 John Simanski & Lesley M. Sapp, DHS Office ofTmmigration Statistics, immigration F:nforcement 

Actiotl.'): 2011,4, ava;/able at httpj!~~'¥Y~~~Qhsc£0~~l:~i(C;:5M~f'1l1Wiilf:~Q]!Jl)li';l'lri!C:~l!?hJJ_lg}lgp-t19D::­

statistic~!cnforccnlcnt [[1' 2011.pdf 

• TCE Office of EnCorcement ami Removal Operations, F:RO Facts and Statistics (Dec. 12,2011), availahle 

at lD~\~i~~ogp}:~ioiQ91ihLtQi:TII1;LQrtBf ~rQ-iQ~Z~_i'iX!d~Bj~ U31icSQ,--lf 

J 
63 

torture, asylum-seekers, victims of trafficking, families with small children, the elderly, 

individuals with serious medical and mental health conditions, and lawful permanent 

residents with longstanding family and community ties who are facing deportation 

because of old or minor crimes for which they have already served their sentences. 

Notably, almost double the number of people are detained in civil immigration detention 

every year than are serving sentences in federal Bureau of Prisons facilities for all federal 

cnmes.~ 

This mushrooming detention system is extremely expensive for American 

taxpayers. Over the years, Congress has steadily appropriated more and more funds to 

expand immigration prisons-from $864 million eight years ag09 to $2 billion annually 

today, an increase of 131 percent. lO ICE currently spends approximately $122 to $164 

each day to detain each person in its custody, or $44,530 to $59,860 per person per 

year. 11 

The steep rise in ICE detention expenditures corresponds to two key shifts that 

effectively guarantee tens or hundreds of thousands of individuals will be unnecessarily 

detained every year. First, mandatory custody provisions enacted by Congress in 1996 

have been interpreted by ICE to require incarceration without bond for virtually all 

noncitizens who are removable because of criminal convictions-including nonviolent 

misdemeanor convictions for which they may have received no jail sentence. 12 As a 

result, thousands of immigrants-including many lonbrtime lawful permanent residentsare held without ever being afforded the basic due process of a bond hearing before an 

independent adjudicator while their deportation cases are being decided. 

Moreover, because of ICE's overly expansive interpretation, mandatory detention 

is being improperly applied to, among others, individuals who have substantial 

challenges to removal on which they ultimately prevail;13 individuals who have old 

convictions and have subsequently demonstrated rehabilitation; 14 and individuals who are 

R There were 209,771 prisoners held by federal correctional authorities as of Decembcr 31. 2010. Tn 

contrast. TCE detained 363,064 individuals that year. and 429.247 in 2011. Compare Paul Guerino. Paige 

M. Harrison. & William J. SahoL Prisoners in 2010 (DO.!' nLlreaU or Justice Stalistics, eeh. 9,2012). 

available at httl'Jfbjl.ojp.llscl9j.gov/cOl}tCOll,ipl1b!l'dFIj,]O.pdf with Immigration Enforcement Actions: 2011, 

supra. at 4. 

9 Immigration and Customs Fn(orcement (leT:) Rudget Fxpenditures FY 2005 - Fr 201 O. Transactional 

Records Access Clearinghouse, Syracuse University (2010), available at 

http://trae.syr.edu/inunigration/reports/224Iinclude/3.html. 

IUUS Dep't o(Homeland Security Annual PeJiormance Report, Fiscal Years 2011-2013 (reh. 13,2012). 

1036, ava; lab! e at htt12i!Y\"Y'-Yilh,iZQYt~ltbrJlIYL~~~91s/IDgHlJi~jh~_~-!ngr~~sj0J]Jll-bllQg~L:i ~l sti fiG_9:tioll-

')",".'.',l.·".' (requesting $1.959.363.000 for Custody Operations in FY 2013). 

National Immigration Porum, The AIath of Immigration Detention: Rzozawa;v Costs for Tmrnigratiml 

Detention Do .Vat Add to Semihle Policies 2012),2, availahle at 

8USC § 

13 See Appendix. e.g. Warren Joseph, Alejandro Rodrigue" Ahilan Nauarajah. 

14 Although section 1226(e) limits the application ofmandatOlY custody to persons who arc arrested by TCE 

'\vhen released" from criminal custody, the agency insists that it applies m~}' lime after an individual's 

release. See Hatter o/Rojas, 23 I. & N. Dec. 117 (nTA 2001). As a resulL TCE applies mandator; 

detention to individuals who have been leading law·abiding lives in the eonulllmity for years following 

4 
64 

detained for prolonged periods of time-sometimes years-far beyond the "brief' period 

of detention contemplated both by Congress and the Supreme Court in Demore v Kim.ls 

Second, Congress fosters costly over-use of detention by its inet1icient and 

unnecessary micromanagement of ICE detention beds. The FY 2012 DHS appropriations 

bill increased the number of beds to their current level of 34,000. 16 By barring ICE from 

employing Hexible, fact-based decision-making about custody, the mandatory bed 

requirement undermines the administration's commitment to reform the civil immigration 

detention system and incarcerate only those individuals who need to be detained: namely, 

those who pose a risk to public safety or are a Hight risk. 

This bed mandate-effectively, a detention quota-has no basis in sound 

detention management and raises serious due process concerns. No other detention 

system in the United States, criminal or civil, specifies that a minimum number of 

individuals be incarcerated. Instead, prudent best practices sensibly afford law 

enforcement ot1icials the discretion to determine, based on an assessment of individual 

Hight risk and danger, who should be detained. The bed mandate ensures that individuals 

who pose no significant Hight risk or danger will be locked up based on Congress's 

orders that ICE satisfy its quota. Such detention is wholly unjustified and runs counter to 

the basic constitutional requirements that civil detention be reasonably related to its 

purpose,17 and that "liberty [be] the norm, and detention ... the carefully limited 

exception." 18 

Indeed, as a practical matter, the bed mandate severely restricts ICE's discretion 

over a large portion of its detained population. Although ICE data indicate that, in FY 

2011, between 45% and 64% of immigration detainees are designated as "mandatory" on 

any given day, the remaining 33% to 55% of detainees are detained at the agency's 

discretion. 19 These individuals generally have no criminal records and are being detained 

solely on the basis of Hight risk. Nothing precludes their release except the government's 

refusal to set a bond or grant release on recognizance, or the detainees' inability to post a 

prohibitive bond that has been set. 

completion of their criminal sentences. See Says ana v. Gillen. 590 F.3d 7, 17-18 (1st Cir. 2(09) ("By any 

logic. it stands to reason that the more remote in time a conviction becomes and the more time after a 

conviction an individual spends in a community, the lower his hail risk is llke1y to he.'"); see also 

Appendix. Errol Barrington Scarlett. 

1< See Demore v. Kim. 538 U.S. 510. 513 (2003) (authorizing mandatory detention for a "brief period"); 

Diol'v. [eTc/HOIneland Sec., ()5() P.3d 221.233 (3d Cir. 20 II) (due process requires a hearing once lhe 

duration of mandatory detention becomes unreasonable); Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 

2005) (8 U.s.C. § 1226(c) only authorizes mandatory detention ifremoval proceedings are "expeditious"). 

16 Consolidaled Appropriations Act oflO 12, Pub. I.. 112-74. 125 Slat. %() (Dec. 23. 2(11), availahle at 

_\~\'}~~~,g~o.JC~bt~~!llhg/Dlt1~'i:Lllh!~?~JJrrI2-JfDIU 1:ft:_U2hr~O;;~_~llU@ 

P See Zadv;vdas v. Davis. 533 U.S. 678, 690 (2001). 

18 United States v. Salerno, 481 U.S. 739,755 (1987). 

19 These statistics are hased on uala ohlained lhrough a Preedom of Tnformation Acl requesl and on file wilh 

the ACLU. ICE informed the ACLU that ""mandatOlY" detention in ICE's data reporting refers to 

individuals who are categorically ineligible for release under 8 U.S.C. ~ 1226(c) because thev are in 

removal proceedings hased on their criminal records, as \vell as delainees \\'ho are in fact eligihle for 

certain fomls of discretionary release, but do not receive bond hearings before an Immigration Judge. 

5 
65 

Yet under the current ICE budgetary rules mandated by Congress, there is little 

incentive and no requirement for the agency to consider whether alternative forms of 

supervision short of incarceration would meet the government's purposes of ensuring an 

individual's appearance at removal proceedings and at removal if ultimately ordered. 

The predictable result of mandates that prevent a case-by-case evaluation of detention 

needs is that-as confirmed by the government's own data-far too many individuals are 

locked up when they do not need to be. Over the years, much of the justitication for mass 

incarceration has been the need to protect the public from "dangerous criminal aliens." 

But in practice, those who are detained generally do not fit this profile. 

Although immigration detention facilities look like prisons, individuals held there 

are not serving criminal sentences. Indeed, more than half of immigration detainees have 

never been convicted of any crime. 20 In most cases, the trigger for immigration detention 

is not criminal activity at all, but instead some other kind of immigration matter, such as 

overstaying a visa or entering the country without inspection 21 And even for those who 

become ICE detainees due to a previous criminal conviction, the majority of convictions 

triggering immigration detention are nonviolent and/or minor,22 and the detainees have 

already completed serving their criminal sentences. Indeed, ICE itself classifies most 

immigration detainees as "low custody" or having a "low propensity for violence," and 

views them as posing no threat to the public 23 

00 According to ICE data, only 46 percent of detainees had a criminal record in t·y 2011. MPI, 

Immigralion E,!/orcemenl in Ihe Uniled Siales, supra, 128 (citing data); see also TRAC Immigration, 

Detention of Criminal Aliens: What Has Congress Rought? (Feh. 11,2(10), 

httl,Jltraqyr,cduiil11l1ligratJ.onJrqlortsi22_4!illc\C"tllIl11 (rep0l1ing, based on ICE data, that the majority of 

immigration detainees hom 2005 through 2009 had no criminal convictions). Moreover, studies repeatedly 

have :-;hown that immigrants are less likezv to commit crimes than naLive-honl Americans. See Stuarl 

Anderson, ImtlliKrallts and Critlle: Perception vs. Reality, Immigration RcfOlID Bulletin, Cato Institute 

(June 2010), available al http://wwvv.cato.org/puhslirblirb june2010.pdf (discussing studies). 

21 According to DOJ dala, a mere 15.5 percent of deportation proceeding~ in FY 2012 \vere made up of 

"criminal cascs·'-that is, cases based on criminal activities. In contrast, 81 percent of cases involved 

immigration la\\' violations such as overstaying a visa or entering the country ,yithout inspection. See 

TRAC Tmmigration, US Deportation Proceedings in Tmmigration Courts (.Tan. 31,2(13), availahle at 

bJtl)_:.(!tr~.:.5YJ~Ggl1/.pJ11~rQ0J?b_p]p1jgr9JiQP/d]~XK~5/QC1IDr.LJiling_011~rg~~J!.b.p. 

22According to DO] data, only 27.5 percent of crime-based dep0l1ation cases in FY 2012 were filed based 

on olrenses charged as "aggravated felonies." See TRAC Tmmigration, us. Deportation Proceedings. 

supa. Similarly, in a report analyzing enforcement data from 1997 to 2007, Human Rights Watch found 

that some of the most common crimes for which people were dep0l1ed are relatively minor olIenses, such 

as marijuana and cocaine possession or lralTic offenses. Among legal immigrants who were deported, 770/u 

had heen convicted for such nonviolent crimes. Human Rights W atch, Forced Apart (By the Hum hers): 

Non-Citizens DeportedMost£v/or Nonviolenl qllenses (Apr. 15,20(9). The Of lice of Immigration 

Statistics reporled lhat in 2005, 5ho/i) oC criminal convictions Conning the hasis Cor deportations were 

nonviolenl drug or illegal reentry crimes~ an additional l4.h% were non-speciCied hUl nonviolent crimes. 

See Mary Doughe11y, Denise Wilson, and Amy Wu, DHS, Office of Immigration Statistics, lfililligration 

E'!lorcemenl Actions: 2005 (Nov. 2006), Table 4, 5. 

03 See Dora Schriro, TCE, Tmmigration DetelltiOIl Ovefview and Recommendatiol18 (Oel. 2(09), 2, availahle 

at httl'l!w",,,-ic,,.gov/<iociibi,,,hollt/oj'fi,cs/od[ll'/p,lfiice-detcnti.oncll'lj;"if According to more recent ICE 

data, as of May 2, 201 L 41 % percent ofICE detainees were classified as Level I (lowest-risk) detainees, 

while onlv 19 percent of detainees were classified as Level 3 (highest-risk) detainees. Human Rights first, 

Jails and Jumpsuit8: Tran~fbrmifiR the U.S. Immigration Detention ,,)ystem-A Two Year RevieH' (Human 

6 
66 

Detention is often unnecessary to prevent an immigrant's risk of flight. As set 

forth below, the criminal justice system has long recognized that alternatives to 

incarceration in TCE detention facilities, such as telephonic and in-person reporting, 

curfews, home visits, and electronic monitoring, can ensure appearance at court hearings, 

and for removal if ordered, at a tenth of the cost ofincarceration 24 Many immigrants are 

ideal candidates for these alternatives, which Congress should fund and make accessible 

by ending the TCE detention bed quota. 

II. The Prevalence of Unnecessary Immigration Detention 

The economic and human costs of overreliance on immigration detention are 

made evident when we look at the kinds of people subject to immiwation detention. 

What follows are just a few stories of individuals who recently benetited from ICE's 

release decisions-survivors of domestic violence and torture, lonbrtime residents with 

nonviolent otTenses and US. citizen children, and individuals who were deemed eligible 

for release on bond but remained detained simply because they were unable to come up 

with the money. As retlected in these examples, TCE routinely detains individuals for 

whom there is no justification for incarceration, particularly in light of the availability of 

alternative forms of supervision that would ensure their appearance at removal 

proceedings. The question Congress should be asking is not why these people were 

released, but rather why ICE was detaining them in the first place? 

I. A domestic violence survivor, Dolores (a pseudonym) is an asylum applicant 

who had been imprisoned at the Sherburne County Jail in Elk River, 

Minnesota for nearly two years. She had one conviction for criminal reentrythe result of her fleeing Honduras to escape an abusi ve boyfriend. Although 

she posed no danger and was an ideal candidate for supervised release, she 

languished in immigration detention and suffered immense hardships, unable 

to maintain contact with her three children and or to get the psychiatric care 

she desperately needed to deal with the post-traumatic stress resulting from 

her abuse. During this period Dolores was deprived of all sunlight (apart from 

the times she was transferred to and from immigration court) and lost onethird of her hair due to anxiety. Meanwhile, her asylum case, based on the 

domestic violence she suffered, has been pending at the Board of Immigration 

Appeals for approximately a year. On February 26, 2013, she was released by 

ICE on conditions of supervision, including wearing an ankle monitor and 

regular reporting25 According to her attorney, she is now living in a women's 

Rights ri,,;(2011), 2 (citing data received through a rreedom orTnCormation Act 

with Human Rights First), available at 

Jumpsuits-report.pdf 

o. Math of immigration Detention, supra, R. 

0' According to a newspaper 3lticle about Dolores's ease, she was awakened by ICE officials on Febmary 

26.2013 and told "You're very expensive to have here injai!. The budget isn't good and you've got to go." 

Allie Shah, "Immigrant held in Sherhurne County jail glad lo 'hreathe Cresh air'" Star Trihune (Mar. 3, 

2013), a va; I ahl e at lltt]' !i\'~lV]~.sL'ltlI blln~cQJDL1Cl_caliJ2J7 I 3LBLhtlJlt'Lelq=}~ 

7 
67 

shelter. 26 ICE would have paid an estimated average of $80 per day to the 

Sherburne County Jail for Dolores's detention. Thus, her two-year detention 

cost taxpayers approximately $58,40027 

2. Marco (a pseudonym), a 20-year-old Mexican national who came to the 

United States on his own four years ago in order to provide for his mother and 

younger siblings, was imprisoned by ICE for four months at the Keogh-Dwyer 

Correctional Facility in Sussex, NJ, even though he posed no danger or tlight 

risk. Marco's father abandoned his family when Marco was a young 

child. For the last four years Marco has been working in New York in order to 

pay for his siblings' schooling and necessities. Tn October 2012, Marco was, 

he says, wrongfully arrested at his place of employment when an undercover 

officer allegedly bought marijuana from someone else on the 

premises. Shortly thereafter Marco was transferred to ICE custody. 

Although early on in his case, the District Attorney's office was clear that it 

had no intention of proceeding with the charges against Marco - and although, 

based on his father's abandonment and other circumstances, Marco is eligible 

to obtain legal immigration status through the Special Immigrant Juvenile 

process - TCE nonetheless detained him without bond. Tn December, Marco 

obtained immigration counsel and received a bond hearing. On January 30, 

2013 - at which point Marco had already been detained for more than three 

months - an Immigration Judge approved his release on a $5,000 

bond. Marco was in the process of trying to collect the money to post bond 

when, on February 25, 2013, ICE released him, subject to the requirement that 

he report after each of his court hearings, which he has done. Taxpayers spent 

an estimated $13,500 for Marco's four-month detention 28 

3. Victoria (a pseudonym), a domestic violence survivor from Mexico who has 

lived in the United States since 2000, was detained at the Eloy Detention 

Center in Arizona for two years and four months, even though she poses no 

danger or flight risk and is pursuing relief from removal in the form of both 

asylum and cancellation of removal. Her asylum claim is based on the 

domestic violence she suffered and would face if returned to Mexico; her 

cancellation claim is based on the hardship her deportation would cause to her 

nine-year-old U.S. citizen daughter. Although denied relief by the 

immigration court, her case is pending on appeal before the U.S. Court of 

Appeals for the Ninth Circuit, which issued a stay of removal until her case is 

finally decided. Prior to her detention, Victoria worked steadily and took care 

26 See id. and emaillo ACUJ from atlomey Sarah nrenes (Mar. 7,20 I ]). 

2' Paul Rignall, ""Jail food: County switches to another provider," Star News (Oct. 5.2012), available at 

http://erstarll.cY\'s. cOlIl/'2 0 12/1 % 5/ i an -food -GOlmty -s',Yitchcs-to-another -ptTl\"iderl 

2' This figure is hased on an estimate from a Newark Star Ledger article which showed thal TCE paid 

approximately $IOS/day per detainee to the Essex County COlTectional Facility in New Jersey. Figures for 

the Keogh-Dwyer COlTectional Facility are unknO\'ll. See Eunice Lee, "ICE detainee release due to 

sequester raises ire of advocates: e,er delaineu?'" Newark Star Ledger (reh. 28, 20 I]) 

available 

8 
68 

of her u.s. citizen daughter. She has two convictions for nonviolent offenses, 

for which she received probation and no jail time. 

On August 7,2012 - at which point Victoria had already been in immigration 

detention for nearly two years without a bond hearing - she finally appeared 

before an Immigration Judge who granted her release on a $6,000 bond. Her 

family was unable to raise the money, so she remained imprisoned another 

seven months until March 2, 2013, when she was released by ICE under 

conditions requiring her to wear an ankle monitor and check-in weekly. She 

is now home living with her daughter and lawful penn anent resident husband. 

Figures from 2010 show thatthe cost of detention per day at Eloy was $65 29 

Victoria's two years and two months of detention therefore cost taxpayers at 

least $55,000. 

4. In Florida, nine female asylum seekers, six of whom are domestic violence 

survivors, were recently released from Broward Transitional Center in Pompano 

Beach, Florida. One had been detained for nine months, the others for between 

five months and six days. None had any criminal convictions apart from one who 

had a conviction for driving without a license. All were released on conditions of 

supervision, including regular reporting and, in some cases, ankle monitors. ICE 

paid GEO Group to detain these women and taxpayers spent an estimated 

$127,592 to detain this group of asylum-seekers who are survivors of domestic 

violence and in some cases torture 30 

While we have no way of knowing whether these detainees are representative of the 

recent releases, their stories are far from unique. Rather, the above cases-as well as the 

additional cases included in the appendix-represent only a fraction of the many 

individuals subjected to unnecessary immigration detention when they pose neither a 

danger or tlight risk, or could be released on alternative conditions of supervision. 

III. Alternatives to Detention Save Vast Sums of Money While Ensuring Court 

Appearances and Protecting Public Safety. 

ICE's own Alternatives to Detention ("ATD") program has been very successful 

in ensuring that immigrants appear for removal proceedings. Bllncorporated, the 

company with which ICE contracts for its Intensive Supervision and Appearance 

Program II CISAP II"), has reported 99% attendance rates at immigration court 

hearings3l Earlier pilot programs like the Vera Institute's Appearance Assistance Project 

IO.l'dl. 2. 

30 All of these women were helped by Americans for Immigrant Justice. 

31 See TSAP IT 20 II Annual Report (in 20 II, TCT' referred :l5,3RO participants to TSAP TT. TCT"s A Tn 

intensive supervision appearance program that in its "full service" option produced a 99.4% attcndance ratc 

at all Immigration Judge hearings and a 96.0% attendance rate at the hnal COUlt decision); ISAP II 2010 

Annual Report (in 20 I 0, TCT' referred 25,77R participants to TSAP IT , "full service" option hau a 99% 

attendance rate at all Tmmigration Judge hearings and a 94% attcndanec rate at the final COUlt decision). 

9 
69 

(AAP) had similar appearance rates. Even for those with criminal records, ATDs were 

etfective in ensuring a greater than 90% appearance rate. 32 

Alternatives to detention are also widely used by the federal and state pretrial 

systems, with both the federal system and several states authorizing detention only when 

no conditions of release are suHicient to protect against danger or flight risk, and 

employing a presumption of release on the least restrictive conditions ofbail 33 As in the 

immigration context, ATDs in the pretrial detention setting have proven to be etfective in 

preventing danger to the community or flight risk pending proceedings. For example, 

according to Department of Justice ("DOl") statistics, among federal defendants granted 

pretrial release during tiscal years 2008-10, only 4% were rearrested for a new otfense 

(felony or misdemeanor) and 1 % failed to make their court appearances. 34 State A TD 

programs report similarly low rates of recidivism and tlight. One example involves 

Harris County, Texas, where the pretrial services program reported only a 5% failure to 

appear rate and a 3.3% rearrest rate in 2011 35 

Moreover, ATDs save tremendous amounts of taxpayer money, costing ICE less 

than $15 per person per day,36 as opposed to the $122 to $166 per person per day required 

for incarceration. Not surprisingly then, experts from across the political spectrum have 

recommended using A TDs to cut costs while still ensuring high appearance rates. For 

example, the Council on Foreign Relations' Independent Task Force on U.S. Immigration 

Policy concluded that alternatives to detention can "ensure that the vast majority of those 

facing deportation comply with the law, and at much lower costS.,,37 The Heritage 

32 Eileen Sullivan el aI., Testing Community SupervisionJor the INS: An lOvaluation oJthe Appearance 

",1ssistance Program, Final Report to the immigration and ]'y'aturafization Service. (Aug. 1,2000), G, 

avai {able al 'iY\V\Y, vera. org/content!testing -comnlUlllty -supef"'l,~ 5 ion -in~-eval nation -appc arnnce-assistallcepT(lkT'-lm~ see also Alfonso Serrano F., "TCE Slow to Emhra~e Alternatives to Immigrant Detention." Ne\v 

America Media (Apr. 10,2012) Cln 2010, for example, government programs that provided alternatives to 

detention resulted in a 93.S percent appearance rate lor illllnigration hearings. And in 2009, the 

goven1IDenl'~ eledronic monitoring programs yielded a 93 percent appearance rale, while its enhanced 

supervision reporting program resulted in a 96 percent compliance rate. "). 

33 See 18 USc. § 3142(e), (e)(l)(A): see also, e.g, Cal. l'enal Code § 1270(a) (2012): lex. Code Crim. 

Proc. Ann. arL 17.40; 725 Tll. Comp. SlaL 5/110-2 (2012); Conn. Gen. SlaL § 54-()3h: Ky. R. Crim Pro. 

4.12: Or. Rev. Stat. § 135.245 

"'VOJ. Bureau of Justice Statistics, Pretrial Release alld,ldiscOlldllct ill Federal District COllrtS, 200/J-201O 

(Nov. 2012), 13 lhl. II (Nov. 2012). availahle at hllp:!i1'is.(li[J.llsJ(lJ.gO\·hnde,.clmOly~phJelail&iid~4535 

"Pretrial Services of Harris County, Texas, 2011 Annllal Report, 20-21, available at 

htlIr/'~'HJ~·\~<,_brrfli~~Q!1)lD~t~._gQ'!/~~Xl].PJ29.CUJW~JltsL~,!J./').l!lJJ1.~1%2nl\~PQJ1§i~2()_tlrc<2()l~~mlJPJj}:·Q2QR~J")(1.11.-

n·t lO.puJ . .. \,'ee also, e.g., Parlnership Cor Community E,~ellence, Pretrial Detention (\;'. Community 

Supervision: Best Practices and Resourcesfor California Counties (San Francisco County reported less 

than a 3% failure to appear rate and a 0% long-tellll recidivism rate for its pretrial program), available at 

hllp:/lcaror\\o~nJ.Jcdn.lleU7a!.)Oc47c!329a4ahd7 2ml](Si\'h9s.pJJ; James Austin el aI., The .If A Institute, 

Florida Pretrial Risk Assessment IllStrument (2012) (in samples Crom Cive !'Iorida counlies in 20 II. ().5% 

failure to appear rate and S.4% rearrest rate), available at 

Math oJImtlligration Detention, supra, S: see also Press Release, Alternatives to Detention for ICE 

Detainees, ICE. Oct. 23.2009. at 9. 

3' Jeh Dush, Thomas!'. McLarlv TTL and Edward H. Aklen, COUllcil on !'oreign Relalions, US 

ItIlmigration Policy, Independent Task Force RepOlt No. 63 (2009),29. 

10 
70 

Foundation also recognized the importance of AIDs to "bring costs down" and 

recommended that more be done "to identify the proper candidates for ISAP-like 

programs" and that "[0 ]ther commonsense programs should be analyzed and, if effective, 

expanded.,,38 One estimate suggests that even if the most expensive ATD program were 

used to monitor detainees who have no violent criminal histories-the overwhelming 

majority ofICE detainees-"the agency could save nearly $4.4 million a night, or $1.6 

billion annually, an 82% reduction in costS.,,39 

Indeed, in its strategic plan for FY 2010-14, ICE recognized "the value of 

enforcing removal orders without detaining people" and committed to developing "a 

cost-etfective Alternatives to Detention program that results in high rates of 

compliance,,4o Moreover, in its FY 2013 Budget Request, DHS sought "flexibility to 

transfer funding between immigration detention and the A TD program.,,41 However, to 

date, ICE's AID program is still dwarfed by the immigration detention system42 ICE 

requested only $72 million for ATDs in FY 2012, compared to $1.9 billion for detention 

operations,43 and requested $111.6 million for FY 2013, compared to another $2 billion 

for detention operations 44 Most importantly, citing its COnb'Tessionally-imposed bed 

mandate discussed above, ICE has not used ATDs to reduce its overall level of detention, 

but merely as a supplement to its detention practices. 

Finally, along with being costly and inefficient, ICE's overreliance on detention 

where alternatives are available raises serious due process concerns. Under federal law, 

pretrial detention is typically imposed only where the government demonstrates before an 

impartial adjudicator "that no condition or combination of conditions will reasonably 

assure the appearance of the person as required and the safety of any other person and the 

community.,,45 Yet in the immigration detention system, the burden is reversed. 

Detention is treated as the default rule and release the exception, with immigration 

detainees-who are overwhelmingly unrepresented by counsel-bearing the burden of 

proving that they pose no danger of flight risk. Moreover, for many categories of 

detained immigrants, ICE engages in no case-by-case detention assessments whatsoever. 

"Mall Mayer, Herilage Weh Memo 3455, "Adminislralive Reforms TnsulTicienllo Address Plawed While 

House and Border Security Policies." (Jan. 10.2012), available at: 

security -pnlicies 

V) Aiath of Immigration Detention, /Supra, 2. 

'10 ICKIer; Strategic Piall flY 2010-2014 (2010).7. amilable at mvw.ice.gov/doclib/news/librarylrep0l1sl 

slralegic-plan/slralegic-plan -20 IO.pdt· 

41 Written testimony of ICE Director John Morton for a House Committee on Appropriations, 

SubcoIIlmittee on I10meland Security hearing onIhe President's Fiscal Year 2013 budget request for ICE, 

avai fable at h ltp:/;\\' w\\. dhs. g()\'/Tle\\ s/20 1 2/O~iORi"vri tLen -testimonv -ll~-immi gratidn-and-cu:-;t(,msen rorc~men t -lce-dlfCcU )f -flO Llse 

FA~-~f-J';';;ary 22,2l11 [thc,;:;; were 13,583 participants in the Full Service program, in which contractors 

provide the equipment and monitoring services along with case IIlanagemenL and 3,871 participants in the 

Technologv-Assisled (T A) program, in which the conlraclor provides lhe equipmenl hul ICT' conlinues 10 

supervise the pmtieipants. FY 2012 Budget Justification, 43. 

13 DIIS, U.S. Department ofIlomeland Security Annual Performarlce RepOit FY 201 1-2013.3-4. 

44 See id. at 35,53. 

4' 18 U.S.c:. § 3142(e)(I). 

11 
71 

Instead, the agency treats detention as "mandatory," and does not even consider 

alternative conditions of custody that are properly calibrated to an individual's Hight risk 

or dangerousness to ensure effectiveness. ICE's practice is contrary to all other civil and 

criminal detention contexts and raises serious Due Process problems. 

IV. Recommendations 

Tn order to curtail the government's wasteful and unnecessary reliance on 

immigration detention, the ACLU makes the following recommendations: 

• Congress should direct ICE to reduce costs by utilizing alternatives in place of 

unnecessary detention (not as a supplement to existing levels of detention). Thus, 

Congress should (I) eliminate language requiring a specific number of detention 

beds to be maintained or filled, and (2) permit ICE flexibility to shift funds from 

detention to more cost-efIective yet reliable AIDs. 

• Congress should appropriate additional funds to AID programs that have been 

proven to ensure appearances for court proceedings and removal, including funds 

for pilot projects to test ATD programs. 

• Congress should prohibit the use of appropriated funds to detain an individual 

unless ICE has determined, through a uniform risk assessment tool,46 that no 

condition or combination of conditions of release would be sufficient to address 

an individual's dangerousness or flight risk, and where this determination is 

subject to review by an Immigration Judge. Such a requirement is fiscally 

prudent as well as constitutionally sound, and would bring the immigration 

detention system in line with the standards applied for federal pretrial detainees 

under the Bail Reform Act of 1984. 

Ihe existing ICE detention system, by failing to mandate proper risk assessments and 

consideration of alternati ves to detention, guarantees the wasteful and expensive 

incarceration of men, women, and children who pose no public safety danger or flight 

risk. ICE's releases from detention of people like those described in this statement's 

appendix demonstrate how Hawed incarceration decisions had become. Congress should 

require reform of custody determinations aimed at preventing unnecessary detention and 

the wasteful use of taxpayer dollars. In addition to reversing the ballooning growth of the 

immigration detention budget, such reform would redress some of the immigration 

detention system's worst constitutional infirmities. 

46 Tn July 2012, TCT' hegan implementing its aLltomaled Risk Classification Assessment that "contains 

ohjeclive criteria to guide decision making regarding whether an alien should he detained or released, and if 

detained, the alien's appropriate custody classification levc!.'· ICE, Detention Reform Accomplishments, 

available at http:/hnYiv.ic~.!2o,'/dctention-reform!Ckt('ntlOn-rcform.htm. These asseSSIIlents should be 

applied to all individuals already in TCT' custody, including "mandatory" detainees. as well as those heing 

considered for detention. ICE docs not usc risk assessment to evaluate the possibility of using AIDs for 

"mandatOl)," detainees, even though there is nothing prohibiting the placeIIlent of "lIlandator~/' detainees 

under other secure forms oC cuslody, such as eledronic monitoring, rather than requiring their 

incarceration. 

12 
72 

APPENDIX: EXAMPLES OF UNNECESSARY DETENTION 

Detainees Recently Released By ICE 

Anna (a pseudonym) has lived in the United States for 23 years. She is a survivor of 

domestic violence and has applied for immigration relief to stay in the United States 

through Cancellation of Removal and a U Visa. Anna has four U.S. citizen children but 

was detained at Eloy Detention Center in Arizona for 19 months based on two 

misdemeanors from iive years ago, for which she completed all probation requirements. 

Although the Immigration Judge granted her bond, Anna was unable to pay the $9,500 to 

be released and was incarcerated away from her family while iighting her case. Since her 

release on February 25, 2013, Anna is back living with her children and has been 

complying with all the conditions of her release including checking in with ICE. 

Carmen (a pseudonym), fled to the United States from her home country seeking safety 

from an abusive domestic partner. Cannen was also fleeing from another assailant who 

had brutally attacked her with a machete and almost taken her life. Apprehended at the 

border in Texas, she was detained at Florida's Broward Transitional Center (BTC) in 

2012, and placed in removal proceedings where she applied for asylum. 

Due to the extensive trauma Cannen suffered, she began to display symptoms of PTSD 

and depression. Carmen's condition was so severe that the medical staff at BTC 

identified her as a domestic violence survivor and made arrangements for Cannen to seek 

therapy at a local domestic violence shelter. 

After Carmen had been incarcerated for more than six months, American for Immigrant 

Justice (AI Justice) requested that ICE release her. AI Justice provided documentation to 

her deportation officer that Carmen had family members in the U.S. who were able and 

willing to support Cannen throughout the pendency of her asylum case. Though it was 

evident that Cannen's continued detention was exacerbating her pre-existing trauma, 

Cannen was not released. 

When released in late February, Cannen had been detained for 9 months, at a cost of 

about $30,000 because ICE paid an average of $124-$164 per day to the private prison 

company GEO Group to detain Carmen, an asylum seeker with no criminal history who 

is a survivor of domestic violence and torture. 

Cannen reports that when she was released from BTC ICE put an ankle-monitoring 

device on her. Cannen then travelled out of state to live with her family members who 

have been waiting to assist and support her. When Cannen reported to ICE in that state 

the anlde-monitoring device was removed and she is monitored via regular home visits 

and telephonic reporting. 

Dolores (a pseudonym), a domestic violence survivor and asylum applicant, was held in 

the Sherburne County Jail in Elk River, Minnesota since May of20l!. After fleeing 

Honduras to escape an abusive boyfriend, Dolores was arrested and imprisoned for 

13 
73 

reentry, her only criminal conviction. When Dolores was transferred to immigration 

custody almost two years ago, she suffered immense hardships. She was unable to get 

the psychotherapy she needed for her post-traumatic stress due to the abuse, and she was 

unable to maintain regular contact with her three children. She lost one-third of her hair 

due to all the anxiety she sutfered. The detention center she was in had no outdoor space, 

so Dolores had not seen the sun, aside from transfers to and from immigration court, for 

almost two years. 

While detained, Dolores was seeking asylum and her case has been pending at the Board 

of Immigration Appeals for approximately a year. She was awakened in detention by 

TCE ot1icials on February 26, 2013 and told "You're very expensive to have here in jail. 

The budget isn't good and you've got to go." She was released under conditions of 

supervision, including wearing an ankle monitor and complying with other reporting 

requirements. She is currently living in a women's shelter. 

John (a pseudonym), was detained at Florence Detention Center in Arizona since 

January 28,2013. He is married to a u.S. citizen and has two U.S. citizen children. John 

has no criminal history and has lived in the United States for 14 years. He has been in 

removal proceedings before an Immigration Judge and is eligible to adjust his status to 

lawful pennanent residence through his U.S. citizen wife. Since his recent release on 

February 25,2013, John has returned to his family. He is complying with all of the 

conditions of his release. 

Marco (a pseudonym), is a 20-year-old Mexican national who came to the United States 

on his own four years ago in order to provide for his mother and younger siblings. He 

was imprisoned for four months at the Keogh-Dwyer Correctional Facility in Sussex, NJ, 

even though he posed no danger or flight risk. Marco's father abandoned his family 

when Marco was a young child. Hence, for the last four years Marco has been working 

in New York in order to pay for his siblings' schooling and necessities. 

In October 2012, Marco was, he says, wrongfully arrested at his place of employment 

when an undercover officer allegedly bought marijuana from someone else on the 

premises. Shortly thereafter, Marco was transferred to ICE custody. Although the 

District Attorney's office was clear that it had no intention of proceeding with the charges 

against Marco - and although, based on his father's abandonment and other 

circumstances, Marco is eligible to obtain legal immigration status through the Special 

Immigrant Juvenile process - ICE nonetheless detained him without bond. 

In December, Marco obtained immigration counsel and received a bond hearing. On 

January 30, 2013 - when Marco had been detained for more than three months - an 

Immigration Judge approved his release on a $5,000 bond. Marco was in the process of 

trying to collect the money to post bond when, on February 25, 2013, ICE released him, 

subject to the requirement that he report after each of his court hearings, with which he 

has complied. 

14 
74 

Robert (a pseudonym), a long-term lawful permanent resident who is severely disabled 

from childhood polio, was subject to mandatory detention at the Eloy Detention Center in 

Arizona for more than two years based on a nonviolent conviction from more than ten 

years before. Before his detention, Robert lived with his family, including his U.S. 

citizen spouse, parents, and siblings. While he was detained, Robert became a father to a 

U. S. citizen daughter. On December 4, 2012, Robert finally was given a bond hearing 

and granted release on a bond of $10,000. He was, however, unable to raise the money 

and therefore stayed in detention until his release on February 23,2013. Since that time, 

he has returned home to his family and complied with all the conditions of his release. 

Victoria (a pseudonym), a domestic violence survivor from Mexico who has lived in the 

United States since 2000, was detained at the Eloy Detention Center in Arizona for two 

years and four months, even though she poses no danger or flight risk and is pursuing 

both asylum and cancellation of removal. Her asylum claim is based on the domestic 

violence she sutTered and would face ifretumed to Mexico; her cancellation claim is 

based on the hardship her deportation would cause to her nine-year-old U.S. citizen 

daughter. 

Although denied relief by the immigration court, her case is pending on appeal before the 

U.S. Court of Appeals for the Ninth Circuit, which issued a stay of removal until her case 

is finally decided. Prior to her detention, Victoria worked steadily and took care of her 

daughter. She has two convictions for nonviolent offenses, resulting in probation and no 

jail time. On August 7, 2012 - when Victoria had been incarcerated for nearly two years 

without a bond hearing - she finally received a hearing before an lmmi/:,'Tation Judge who 

granted her release on a $6,000 bond. Her family was unable to raise the money, so she 

remained imprisoned another seven months, until March 2, 2013, when she was released 

by ICE under conditions of supervision which require her to wear an ankle monitor and 

check-in weekly. She is now home living with her daughter and lawful permanent 

resident husband. 

Other Examples of Unnecessary Detention Unrelated to the Recent Releases 

M.B. is a 39-year-old citizen of Haiti who has resided continuously in the United States 

as a lawful permanent resident since 1986. Mr. B was subject to mandatory detention for 

nine years while making his case against removal to Haiti, where he faces torture at the 

hands of the authorities. 

Mr. B suffers from paranoid schizophrenia and takes anti-psychotic medication to 

manage his condition. He was placed in removal proceedings in April 2000 based on a 

1997 conviction for attempted robbery. The incident underlying the conviction stemmed 

from Me B' s attempt to get five dollars back from a street vendor who had sold him two 

beers, which Mr. B wanted to return because they were warm. 

The Immigration Judge granted Mr. B. relief under the Convention Against Torture 

(CAT) because as a deportee with a criminal record, he would be imprisoned upon return 

to Haiti, deprived of his medication, and face severe physical abuse by guards. The 

15 
75 

government, however, appealed the decision, and the Board ofImmigration Appeals 

reversed it, beginning a ten-year legal struggle. 

Mr. B was in immigration detention in a New Jersey jail for nine of the ten years that his 

removal case has been pending - three times longer than his sentence for the conviction 

that gave rise to the removal proceedings. TCE released Mr. B in January 2009. At that 

time, due to inadequate management of his psychiatric disability while in immigration 

detention, Mr. B was deemed by doctors to be psychotic. After extensive treatment, Mr. 

B has regained his ability to think rationally and function well Though he continues to 

reside in a psychiatric facility, he is now able to be employed and leave the facility on 

weekends to visit his family - all U.S. citizens and permanent residents - without 

supervision. 

Aurora Carlos-B1aza, a citizen of the Philippines, lawfully entered the United States as 

a teenager. Ms. Blaza has been deeply committed to her family, working in California 

fruit orchards during school vacations to help her parents finance a house and attending a 

local community college in order to serve as a caregiver for members of her extended 

family. However, after her husband conceived a child in an extramarital affair, divorced 

her, and left her deeply in debt and ashamed of asking her family for assistance, Ms. 

Blaza was convicted on charges arising out ofloans she took out for herselfin the name 

of her aunt and cousin. For two and a half years, ICE kept Ms. Blaza in detention while 

she pursued her claim that the statute under which she was convicted did not make her 

deportable. ICE maintained custody despite an outpouring of support from Ms. Blaza's 

family and her U.S. citizen partner, and her strong equities as a committed worker and 

caregiver. Moreover, ICE detained Ms. Blaza in a facility in Hawaii, far from her home 

and family in Fresno, California. 

In December 2008, Ms. Blaza was given a bond hearing under the Ninth Circuit's 

decision in ('asC/s-Caslrillol1 v. DHS, 535 F.3d 942 (9th Cir. 2008). An Immigration 

Judge granted Ms. Blaza release on a $5,000 bond, holding that the government failed to 

show that she presented a sufficient danger or flight risk to justify her continued 

detention. Upon her release, Ms. Blaza returned to Fresno, worked as an office assistant, 

and gave birth to a son. After ultimately losing her immigration case, Ms. Blaza returned 

to the Philippines with her child without incident. 

R.c., a native and citizen ofIreland, entered the United States as a lawful permanent 

resident in 1955 at the age of five. His entire immediate family is in the United States. In 

recent years, Mr. C has struggled with a drug problem and, in August 2006, was 

convicted of a misdemeanor drug possession offense, for which he was sentenced to time 

served and a six-month suspension of his driver's license. On the basis of this offense 

alone, Mr. C was placed in removal proceedings and subject to mandatory detention for 

approximately ten months while fighting his case. Ultimately, in March 201 1, Mr. C was 

granted cancellation of removal and released. He now lives in Queens, New York with 

his brother. Mr. C had to celebrate his 60th birthday in detention. 

16 
76 

Amadon Dionf has lived in this country for approximately fifteen years. He entered the 

United States on a student visa, obtaining a degree in information systems from a 

university in Southern California. The government initiated removal proceedings against 

him for overstaying his student visa after he was arrested and charged with possession of 

a small quantity of marijuana-an ofIense that did not render him deportable. 

Nevertheless, Mr. Dioufwas detained for over 20 months during the pendency of his 

removal proceedings, even though he was prima.fixie eligible for adjustment of status to 

lawful pennanent residence through his marriage and had not been convicted of a 

removable ofIense. 

Notably, the only process Mr. Diouf received during his prolonged imprisonment was 

two perfunctory reviews of his administrative file in which ICE summarily continued his 

detention. Ultimately, a federal district court ordered that Mr. Dioufreceive a bond 

hearing before an Immigration Judge where the government was required to show that his 

detention was still justified. The Immigration Judge found that Mr. Diouf did not present 

a Hight risk or danger sunicient to justify detention and ordered his release on bond. 

Despite this decision and the fact that Mr. Dioufwas living on conditions of supervised 

release without incident after being released, the government continued to argue that he 

should be detained without a bond hearing. Mr. Diouf eventually won his immigration 

case and was granted a U Visa. He works as a car salesman. 

Warren Joseph is a lawful pennanent resident of the United States and a decorated 

veteran of the first Gulf War. He moved to the United States from Trinidad nearly 22 

years ago and has five U.S. citizen children, a U.S. citizen mother and a U.S. citizen 

sister. A few months after coming to the U.S., when he was 21 years old, Warren 

enlisted in the U.S. Army. He served in combat positions in the Persian Gulf, was injured 

in the course of duty and received numerous awards and commendations recognizing his 

valiant service in the Gulf War, including returning to battle after being injured and 

successfully rescuing his fellow soldiers. 

Like many Gulf War veterans, Warren returned from the war with symptoms that were 

only later diagnosed as PTSD. His sister recalls that she "was shocked to see how much 

Warren had changed." He was anxious, had recurring nightmares about killing people, 

and would wake up in a cold sweat He became withdrawn and thought about suicide 

constantly. In 2003, he drank rust remover and had to be hospitalized. 

In 2001, Warren unlawfully purchased a handgun to sell to individuals to whom he owed 

money. He fully cooperated with an investigation by the ATF, and his actions were not 

deemed sufficiently serious to warrant incarceration. Two years later, however, suffering 

from partial paralysis and debilitating depression, Warren violated his probation by 

moving to his mother's house and failing to inform his probation officer. He served six 

months for the probation violation. Upon his release, in 2004, he was placed in removal 

proceedings and subjected to mandatory immigration detention. 

Warren remained in immigration detention for more than three years while he fought his 

deportation. During his entire period of incarceration, Warren was never granted a 

17 
77 

hearing to determine whether his detention was justified. Indeed, even after the U.S. 

Court of Appeals for the Third Circuit found that he was entitled to apply for relief from 

removal, and remanded his case back to the immigration court, the government continued 

to subject him to mandatory detention. He was not released until he finally prevailed on 

his application for relief before the Immigration Judge. 

Commenting on his ordeal, Mr. Joseph said: "I joined the Army because I love the United 

States; I am very disappointed that I have been treated this way, but I still love this 

country." 

Ahilan Nadarajah, an ethnic Tamil farmer who was tortured in his native Sri Lanka, was 

detained for nearly five years while seeking asylum in the United States. From the age of 

17, Mr. Nadarajah was brutally and repeatedly tortured by Sri Lankan Army soldiers who 

arrested him and accused him of belonging to the Liberation Tigers of Tamil Eelam 

(L TTE). Over the course of several arrests, soldiers beat him, hung him upside down, 

pricked his toenails, burned him with cigarettes, held his head inside a bag full of 

gasoline until he lost consciousness, and beat him with plastic bags full of sand. 

Eventually, Mr. Nadarajah fled to the United States in October 2001, where he was 

immediately arrested at the border. ICE then held Mr. Nadarajah in detention for nearly 

five years while he fought his case, despite an Immigration Judge twice holding that he 

was entitled to asylum and rejecting the government's claims, based on false and secret 

evidence, that he was in fact a member of the LTTE The BIA affirmed the grant of 

asylum, and the Attorney General declined further review, giving Mr. Nadarajah lawful 

status. 

Although Mr. Nadarajah was initially granted parole with bond, ICE subsequently 

rejected his attempt to tender money for the bond years later on the grounds that the bond 

order was "stale." ICE also denied Mr. Nadarajah's further parole requests after he won 

relieffrom the Immigration Judge and BIA. At no point during his lengthy detention did 

Mr. Nadarajah receive an opportunity to contest his detention before an immigration 

judge. Ultimately, in March 2006, Mr. Nadarajah was ordered released from detention by 

the U.S. Court of Appeals for the Ninth Circuit, which held that the immigration laws did 

not authorize his detention where his removal was not reasonably foreseeable, and that 

the government lacked any facially legitimate or bona fide ground for denying his parole 

request 

Hiu Lui Ng, a Chinese national with a U.S. citizen wife and two young U.S. cItizen 

children, was detained by ICE when he appeared for his green-card interview. Mr. Ng 

clearly posed no danger or risk of flight: he was a computer programmer with a good job 

and no prior criminal history, and he was eligible for a green card based on a petition 

filed by his wife. Yet he was detained for more than a year while he sought to reopen a 

past in absentia removal order, the validity of which he contested. His case became frontpage news when he died in detention after failing to receive proper medical care and 

suffering horrendous abuse from prison guards, including an injury that caused him to 

break his spine The New York Times criticized not only the way Mr. Ng was treated, but 

also the fact that he was detained in the first place. 

18 
78 

Lobsang N orbu, a Buddhist monk from Tibet, ±led China after he was arrested, 

incarcerated, and tortured twice on the basis of his religious beliefs and political 

expressions in support of Tibetan independence. He arrived in New York and was 

immediately placed in immigration detention pending the adjudication of his asylum 

claim. Mr. Norbu's attorney filed a parole application that included an affidavit from a 

member of the American Tibetan community who pledged to provide Mr. Norbu lodging 

and ensure his appearance at any hearings. During Mr. Norbu's ten-month detention, the 

government provided no response to this parole request, and Mr. Norbu was never given 

the opportunity to arb'lle for his release before an Immigration Judge. In AUb'llst 2007, the 

Board ofTmmigration Appeals reversed the Immigration Judge's denial of Mr. Norbu's 

asylum claim. Mr. Norbu is currently living in a Tibetan group home on Long Island, 

New York and working at a restaurant. He was granted adjustment of status. 

Alejandro Rodriguez, a Mexican national who has been in the United States since he 

was a baby, was detained for more than three years without a meaningful hearing on the 

propriety of his prolonged detention in light of the non-violent nature of his convictions 

and his strong community ties. Prior to his detention, Mr. Rodriguez lived near his 

extended family in Los Angeles, working as a dental assistant to support his two U.S. 

citizen children. 

His claim against removal hinged on whether he could be deported for two non-violent 

convictions-joyriding when he was 19, and misdemeanor drug possession when he was 

24. Mr. Rodriguez was denied release by ICE on the basis of administrative file custody 

reviews in which ICE rejected his requests for release based entirely on a written 

questionnaire, without even interviewing him. After Mr. Rodriguez filed a habeas petition 

in district court-but before the petition was adjudicated-ICE released him in 2007 on 

his own recognizance, revealing that the agency had never considered him a fiight risk or 

danger to the community. He has remained released on conditions of supervision without 

incident. 

Melida Ruiz, a 52-year-old grandmother, was detained for seven months at Monmouth 

County Jail in New Jersey before she was finally released after winning her case. A 

longtime lawful permanent resident of the United States, with 3 U.S. citizen children and 

2 US. citizen grandchildren, she was arrested by ICE officers at her home in the spring 

of 20 11. She was placed into mandatory immigration detention based on a misdemeanor 

drug possession offense from nine years before for which she had not even been required 

to serve any jail time, and which was her sole conviction during thirty years of living in 

the United States. 

Although Ms. Ruiz was eligible for various forms of discretionary release from removal, 

and posed no danger or ±light risk, and although she was the primary support for her US. 

citizen mother who suffers from Alzheimer's disease, her 17-year-old and ll-year-old 

daughters, and her 5-year-old granddaughter, she was nevertheless forced to endure seven 

months of immigration incarceration. While she was in detention, her 17 -year -old 

daughter gave birth to a boy. 

19 
79 

Prior to her incarceration by ICE, Ms. Ruiz had worked full-time as a roofer with the 

United Union ofWaterproofers and Allied Workers from 1996 until an accident in 2009, 

which left her with severe back and neck pain, pain which was aggravated to such extent 

while she was in detention that at one point her doctor feared she would require surgery 

to avoid paralysis. Tn granting her application for cancellation of removal, the 

Immigration Judge emphasized the "substantial equities in [her] favor" including her 

"work history, tax history and property ownership" as well as the fact that her family 

"would suffer signiticant hardship if she were deported." The Immigration Judge also 

found that, despite the one conviction from 2002 which was "out of character," Ms. Ruiz 

has been "a law abiding resident of the United States and a stalwart positive force for her 

family and friends." ICE chose not to appeal the decision. Ms. Ruiz is now once again 

reunited with her family but at considerable emotional and tinancial cost, not to mention 

the approximately $28,595 that the taxpayers spent for her detention. 

Errol Barrington Scarlett is a longtime lawful permanent resident from Jamaica who 

has lived in the United States for over thirty years. The government subjected him to 

mandatory detention for five years without a bond hearing at various detention facilities 

even though he had successfully reentered society for a year and a half after his release 

from incarceration and before TCE took him into custody. He had found employment 

with his brother's real estate business and had been enrolled in a drug treatment program 

for over a year. Nonetheless, DHS placed him in removal proceedings and subjected him 

to mandatory detention. After a Federal District Court ordered that he was entitled to a 

bond hearing, he was released on bond. 

Raymond Soeoth is a Christian minister from Indonesia. In 1999, when Reverend 

Soeoth and his wife fled Indonesia to escape persecution for practicing their faith, they 

could not have anticipated the treatment they would receive in the United States. Initially, 

Reverend Soeoth was allowed to work in the United States while applying for asylum and 

eventually became the assistant minister for a church. He and his wife also opened a 

small corner store. Yet when his asylum application was denied in 2004, the government 

arrested him at his home and took him into detention. 

Even though Reverend Soeoth posed no danger or flight risk, had never been arrested or 

convicted of any crime, and had the right to seek reopening of his case before botb the 

immigration courts and federal courts, ICE insisted on keeping him in detention. He spent 

over two and a half years in an immigration detention center while the court decided 

whether or not to reconsider his asylum claim. During that time, he never received a 

hearing to determine whether his detention was justified. 

While in detention, Reverend Soeoth was isolated from his family and community as well 

as his congregation. His wife was unable to maintain the store that the couple had jointly 

run and she was forced to shut it down. In February 2007, Reverend Soeoth finally 

received a bond hearing as a result of a successful habeas corpus petition filed by the 

ACLU Following that hearing Reverend Soeoth was released on a $7,500 bond. 

Although his asylum case was subsequently denied, the government granted him 

20 
80 

"deferred action" status, a temporary form of relief that can be renewed annually on a 

discretionary basis, as part of a settlement reached because the government had subjected 

him to illegal forcible drugging during his detention. He and his wife subsequently 

prevailed on a motion to reopen their asylum case. 

Commenting on his ordeal, Reverend Soeoth stated that "1 can't understand why in 

America I must choose between two evils: going back to Indonesia to face persecution or 

being detained while 1 tight for asylum." 

Saluja Thangaraja, who was released from immigration detention on her 26th birthday, 

tled Sri Lanka in October 2001 after being tortured, beaten and held captive there. She 

was detained at the United States-Mexico border later that month, on her way to reunite 

with relatives in Canada, and was imprisoned in a federal detention center near San 

Diego for over four and a half years, until March 2006. 

During years of civil unrest and turmoil, Saluja and her family were displaced from their 

home and forced to live in a police camp after contlict broke out in their small town 

between the Sri Lankan Anny and the Liberation Tigers of Tamil Eelam. After finally 

returning to her home, Saluja was twice abducted, beaten and tortured by the Sri Lankan 

army. Saluja went into hiding after her second abduction, and soon after the family 

decided she needed to leave the country to protect her life. 

Despite finding that she had a credible fear of persecution, the government refused to 

release her from detention while she sought asylum before the immigration court, the 

Board of Immigration Appeals (BlA), and ultimately the U.s. Court of Appeals for the 

Ninth Circuit In August 2004, after almost three years in detention, the Ninth Circuit 

found that Saluj a faced a well-founded fear of persecution if she were returned to Sri 

Lanka and granted her withholding of removal-a fonn of relief that prohibits the 

government from returning her to that country. In addition, the Court found Saluja 

eligible for asylum. 

Despite this stinging rebuke, the government continued to pursue Saluja's removal and 

insist on her detention. Indeed, even after the Immigration Judge granted Saluja asylum 

in June 2005, the government appealed that decision to the BlA and refused to release 

Saluja. Saluja finally gained her freedom in March 2006, but only after the ACLU 

petitioned the district court for her release. Upon her release, she was finally able to 

reunite with her family in Canada, where she has now married and had a child. 

21 
81 

March 13,2013 

The Honorable Bob Goodlatte 

Chairman, U.S. House of Representatives Committee on the Judiciary 

The Honorable John Conyers Jr. 

Ranking Member, U.S. House of Representatives Committee on the Judiciary 

Members of the Committee 

U.S. House of Representatives 

2138 Rayburn House Office Building 

Washington, DC 20515 

The Honorable Patrick Leahy 

Chairman, Senate Committee on the Judiciary 

The Honorable Chuck Grassley 

Ranking Member, Senate Committee on the Judiciary 

Members of the Committee 

U.S. Senate 

224 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Members of the House and Senate Judiciary Committees, 

We the undersigned organizations, working to ensure civil liberties and human rights in our 

communities, urge you to support the Department of Homeland Security Immigration and 

Customs Enforcement's (ICE) efforts to increase etliciencies and fiscaJ accountability by 

releasing individuals who do not need to be detained under responsible immigration and fiscal 

policy. 

At the end of February, ICE confirmed that it was releasing people from its custody as part of a 

plan to reduce the detained population. ICE's decision to reconsider when detention is necessary 

and to start releasing people from detention when there is no need to detain, is a step in the right 

direction on many levels. First and foremost, it means fewer people have to endure the 

indignities ofimprisonment. Substandard medical care, physical, verbal and sexual abuse, lack of 

outdoor recreation, lack of access to legal services, and limited contact with family or the outside 

world, are just some of the hardships that pervade the experience of being detained. Second, 

detention is extraordinarily and unnecessarily expensive, costing approximately $164 per person 

per day, or nearly $60,000 per person for a year. In the last year, ICE custody operations cost 

American taxpayers nearly $2 billion. By reducing reliance on physical detention, the 

government can greatly reduce unnecessary costs. Third, there are proven alternatives to 

detention that meet the agency's needs while being far more cost effective and humane. As ICE 

noted in its statements about the releases, alternative methods for supporting individuals to 
82 

appear for their immigration hearings can cost as little as $12 a day and are extremely etTective 

in ensuring compliance with immigration procedures and orders. Releasing individuals on their 

own recognizance or on bond costs the US. government even less. In FY 2010, ICE's ATD 

programs resulted in a 93.8 percent appearance rate for immigration hearings. Other models and 

pilots have had even higher compliance rates. Alternatives to detention also allow individuals to 

continue to work, to care for themsel ves and their families, and to access legal services to help 

with their immigration court cases. Finally, releasing parents who have been shown to qualify for 

release or alternatives to detention prevents children from ending up in our state foster care 

systems and saves our communities. 

Several members of Congress have criticized ICE for utilizing alternatives to detention, claiming 

that the agency is releasing people who pose a threat to public safety. ICE has confirmed 

publicly that no one was released who presented a safety threat and that it continues to evaluate 

custody decisions to ensure public safety. When evaluating our nation's detention system, it is 

important to remember that while some immigrants in ICE custody have past criminal 

convictions, most do not, and those who do have already served their sentences. Furthermore, the 

overwhelming majority of those immigrants with past criminal convictions committed minor, 

non-violent offenses that did not threaten the safety of any other person. 

The sole legal purpose of immigration detention is for ICE to ensure that individuals appear for 

their court proceedings and comply with a final order of deportation. This goal can be met 

through far less costly and more humane alternatives. Congress should support the use of smarter 

and more consistent methods of determining when detention is necessary and releasing people 

from detention who need not be detained. Additional steps towards refonning immigration 

detention should include: 

1. Eliminating the detention bed qnota. 

Congress has directed ICE to maintain 34,000 detention beds --each day--, and DRS strives to 

fill all of these beds each day. Quotas are antithetical to criminal law enforcement policy and, 

similarly, do not belong in immigration enforcement. No corrections system in the U.S. operates 

with quotas or target population levels. The deprivation of liberty is a serious matter that cannot 

be based on a quota rather than onjustitied need. DRS must have flexibility in how it spends its 

custody and enforcement budget based on determined needs. Congress must therefore clarify that 

TCE need not detain persons who would not otherwise be detained in order to t111 a minimum 

number of detention beds. 

2. Reducing the detention budget and increasing funding for community-based 

programs. 

Tn its FY 2013 budget, the White House asked for a reduction in the detention budget, an 

increase in funding for alternatives programs, and the flexibility to use detention funds for 

alternatives where appropriate. Congress should honor this request and explicitly permit 
83 

flexibility in how ICE uses its detention funding, allowing ICE to divert detention dollars to 

programs that rely on etfective, cheaper, and more humane, forms of custody. 

3. Repealing all mandatory detention laws and restoring discretion over custody. 

In FY 2011, approximately 45-64% of people in immigration detention on any given day were 

subject to mandatory detention. Mandatory detention, as prescribed in several sections of the 

Immigration and Nationality Act, requires that ICE hold certain categories of people in custody 

without access to the basic due process of a bond hearing. Congress should amend these statutes 

to restore discretion to the Department of Homeland Security and the Department of Justice to 

evaluate whether detention is necessary based on an assessment of flight risk and threat to public 

safety for every individual apprehended, including those subject to mandatory custody, and to 

make custody determinations subject to judicial review. 

We, the undersigned organizations, urge you to support these efforts to reform the immigration 

detention system so it may operate in a more tlscally sound and humane manner in accordance 

with our values as a nation that stands for liberty and justice. If you have any questions, please 

contact Emily Tucker, DWN Director of Policy and Advocacy, 

e1Ltcke!@d"teil1ionlvaJcbl1e!.,vor1,"()rg. 

Sincerely, 

National Organizations: 

American Civil Liberties Union 

Americans for Immigrant Justice 

American Friends Service Committee 

American Immigration Council 

American Muslim Voice 

Communities in Action 

Cuentame 

Detention Watch Network 

Ella Baker Center for Human Rights 

Grassroots Leadershi p 

Human Rights Defense Center 

Immigrant Defense Project 

Immigrant Legal Resource Center 
84 

Lawler & Lawler 

Lutheran Immigration and Refugee Service 

National Center for Transgender Equality 

National Immigrant Justice Center 

National Network for Immigrant and Refugee Rights 

Rights Working Group 

The Advocates for Human Rights 

The Alliance for a Just Society 

United We Dream Network 

Unitarian UniversaJist Service Committee 

Women's Refugee Commission 

State and Local Organizations: 

African Services Committee, NY 

American Gateways, TX 

Austin Immigrant Rights Coalition, TX 

Baurkot & Baurkot, NY 

Boston New Sanctuary Movement, MA 

Breakthrough, NY 

Coalicion de Lideres Latinos-CLILA, GA 

Colorado Immigrant Rights Coalition, CO 

Colorado Progressive Coalition, CO 

Conversations with Friends, MN 

El Refugio Ministry, GA 

Families for Freedom, NY 

Fanm Ayisyen Nan Miyami, Inc., FL 

First Friends of New Jersey and New York Corp, NJ 

Florida Coastal School of Law's Immigrant Rights Clinic, FL 

Florida Immigrant Coalition, Inc, FL 

Florida New Majority, FL 

Georgia Detention Watch, GA 

1llinois Coalition for Immigrant and Refugee Rights, IL 

Immigrant Law Center of Minnesota, MN 

Immigrant Rights Clinic, Washington Square Legal Services, NY 

Interfaith Coalition on Immigration, MN 

Jesuit Social Research InstitutelLoyola University New Orleans, LA 

La Raza Centro Legal, CA 

Massachusetts Immigrant and Refugee Advocacy Coalition, MA 

New Sanctuary CoaJition, NY 

4 
85 

New York Immigration Coalition, NY 

No More Deaths, AZ 

Northern Manhattan Coalition for Immigrant Rights, NY 

One Horizon Institute, KY 

Political Asylumllmmigration Representation Proj ect, MA 

Rocky Mountain Immigrant Advocacy Network, CO 

Sisters of Mercy, Mid-Atlantic Justice Office, PA 

Sisters of Mercy, West Midwest Community, NE 

Sisters of Notre Dame de Namur, CA 

Survivors of Torture, International, CA 

Tennessee Immigrant and Refugee Rights Coalition, TN 

Texans United For Families, TX 

The Benedictine Sisters of Baltimore, MD 

The Immigration Justice Group - Central Baptist Church of Wayne, PA 

The Reformed Church of Highland Park, NJ 

University of Maryland Carey School of Law Immigration Clinic, MD 

Washington Community Action Network, W A 

Washington Defender Association's Immigration Project, WA 

WeCountl, FL 

Who Is My Neighbor? Inc, NJ 

Cc: 

The Honorable Janet Napolitano, Secretary, U.S. Department of Homeland Security 

The Honorable John Morton, Director, U.S. Immigration and Customs Enforcement 
86 

AILA ~allol\al OHIu 

Suilt 300 

1331 G SI,"~ NW 

wash,ng!On, DC 

~·31~2 

Tel 102.5077600 

Fax: 202,783,7853 

1¥'IrW,llIl.org 

'-,,... --'--

---

1' .. Iimooy of Ih~ Amrriull homignli"" l.awyrn AMocia lioOl 

Suhmillrtllo d,,, 

Commiu«, 0" Iht Judi ti~r')' of!he U.s. !louse or I(rp~"IRlivt5 

lIuri"l"o J\lRrrh 19, 201J 

"Tht Rt:lu!4' of Criminal Drt. inn. by U.S. IOlO11igr81ioll Dod ~ 

Entorumelll: Poli cy or Politics?" 

TheAmerkan Ionm.sratiQ<! LAW)'en A!iSoci~lion (AILA) submits Ihe fOUOWIOS 

telitimony 10 ,he.( ornmill~e Qtt th" Judiciary AILA is Ihe n31iollal associalion of 

", ,,,ilP"~Lion lawyers es abli~heil 10 prQmOlejUSlicc MId advQCilIC for rair and 

re<liiQllablc immi!jJ1Ition low Bnd polic)' ,\ Il.A hn over 12,000 au"",,,y and law 

professor memMrs 

The flutnt>erofinnmiJ!Tlllioo detainees lias more Ihan doubled o,'rr ,lie lUI 10 

years IIl1d more Ihan tripled over Ihe las1 15 yean; - f.om 108,454 ill 1996 a"d 

204,45\1 in 2001 10429,247 in 2011 Spendin!! 00 detentioo hu incrc8sed 

cXponenlially 1l~ w~l1. from SSM million sevcn years Dl:!n to S2 02 billion today 

The r<'Slrainl ofan individual 's liberty;s (}lIe vflhe mOSI consequential 

government pow.ers No olle should be dcprived of their liberty e,.ccepl as . Iasl 

reson, l}ul CVt'f)' day, thousands ofpoop!e - Includi"S asylum seekers and those 

with no triminal convictions - are d~ a;ned by Immig.r:uiQJl and ~") l 

EMon:ement (ICE) Ihough they pose no ni!lht ri!ok or Ihreat lO public safelY 

According 10 r"",,,,,1 ICE-dala. 85 "r May 2, 2011, 41~~ "f;mmigrants in detention 

were classified 81 Ihe lowest pOSsible risk Ic,el 

ICE .'ih<.JIIld be rdlea$;n!l ffllm inSIitUlion31 detenlion thOse individuals who should 

nevcr have been ~et8j neil ;n Ihe first place. Silendill!l billions of a.~payer dollar~ 

10 needlessly de1,tin immigrants I'<ho could sut:C~'Ssftlny and safdy M relea~.,;J \5 a 

povru!;e of imi1<~d rC!;OOrces, Immigration dcten!iOll COSIS U S taspayers 

bel "'",," SI22 an,d $164 per day Fu rt hermore, the t(l<lditiolls ofimmigrrulon 

detenlion faU "'" I bt lo\\' Ilppropriate standll,dli for civil COIIfinemcnt, 

InSlead of detenllon, ICE has a range of other tools nl its disposal locnslIreCOtJrt 

8))1H'l\f81lccs. in~luding scnillg a bood. rdea;;ing ;ndiyiduaison their own 

rf'CO!IJliu",;e, and usin!llltenmiyes 10 dl.'tention (ATD) Each of these options 

COSIS far less Iha" instiwliOtlal d~~c lll iQII and inlllQscs fewe. reslfaiQts on liberty 

The liTO prOWl""S ICE curTClI1ly operat" cost as linleilS SI..\ per day 1lIld life 

J!}'Ossly I.indet'Util~zed , 

ICE., like ""ery 1; ,,,, fotcefll ~nI agency, ~hould make 0" i~di,·idllalizN 

dClerlllination of risl; before confining Wtllrone to a detention facility In fa~1, il 

IS ICE policy 10 ure.:11 each individual 10 assess the risk of nigh! Bnd threa l 10 

111lblic safely Ie E's recently-launched Risk Assessmen t Tool j~a step in the riShI 

direction, lfimp lemented properly, " will ls!;<'ss Ihc ri!ok I""et of each individual 

Rpprehended, while taking ililo ilCcOllllllhe indj"iduai's special vulnerabilities. 
87 

ICE could do more to expand its use of proven alternatives to detention, and Congress should 

appropriate more funding for ATD programs. ATD programs are critical to the lives of 

noncitizens in removal proceedings, many of whose cases drag on for years and who would 

otherwise be separated from loved ones and isolated from community support, while being 

deprived oflegal representation (over 80% of detained individuals are unrepresented) 

Community-based A TD programs should be established by law and funded by Congress Nongovernmental organizations (NGOs) are mission-driven and generate more community resources 

because of their ability to attract volunteers and donations of goods and services, and have a 

track record of creating effective community-centered release programs 

Our laws should also ensure that intrusive or intensive forms of supervision are utilized only 

when necessary. Frequently, ICE improperly uses ATDs on individuals who should be released 

without any supervision. ATD programs that retain custody over the person, such as electronic 

monitoring, should be reserved for individuals who do not meet the requirements of other less 

restrictive release options but who can otherwise be released from jail. 

Finally, AILA members are deeply concerned that our immigration laws do not always ensure 

that a neutral adjudicator can review TCE's initial detention decision in order to determine in 

each case whether detention is necessary and lawful. As currently applied by ICE, mandatory 

custody or detention laws automatically deny bond hearings to entire groups of people. These 

laws deny noncitizens basic due process and must be reformed. Categorical laws that mandate 

deprivation ofliberty - no matter the specific circumstances of a person's case - run afoul of 

basic principles of fairness and due process 

Tmmigration officers and judges must have the authority in all cases to consider alternatives to 

detention for individuals who are vulnerable or pose little risk to communities and to consider in 

each case whether continued detention is necessary and lawful. Further, ICE should be required 

to place each individual in the least restrictive setting available, and use alternatives to detention, 

such as release on recognizance, bond, supervision, or ankle GPS monitors 
88 

human rights first 

STATEMENT FOR THE RECORD 

On 

"The Release of Criminal Detainees by U.S. Immigration and Customs Enforcement: 

Policy or Politics?" 

Submitted to the 

House Judiciary Committee 

March 19,2013 
89 

ABOUT HUMAN RIGHTS FIRST 

Human Rights First is an independent advocacy and action organization that challenges America 

to live up to its ideals. We believe American leadership is essential in the struggle for human 

rights so we press the U.S. government and private companies to respect human rights and the 

rule oflaw. When they don't, we step in to demand reform, accountability and justice. Around 

the world, we work where we can best harness American influence to secure core freedoms. 

We know that it is not enough to expose and protest injustice, so we create the political 

environment and policy solutions necessary to ensure consistent respect for human rights. 

Whether we are protecting refugees, combating torture, or defending persecuted minorities, we 

focus not on making a point, but on making a difference. For over 30 years, we've built 

bipartisan coalitions and teamed up with frontline activists and lawyers to tackle issues that 

demand American leadership 

Human Rights First oversees one of the largest pro bono legal representation programs for 

asylum seekers and refugees in the country, working in partnership with and training volunteer 

attorneys at top U.S. law firms. Together we have helped thousands of persecuted refugees gain 

the protection they deserve and begin new lives in safety and freedom, winning about 90 percent 

of our cases. 

Based on the experience of our Pro Bono Asylum Legal Representation Program, we advocate 

for access to asylum, for fair asylum and immigration procedures, and for U.S compliance with 

international refugee and human rights law. Every year, thousands of asylum seekers including 

survivors of torture and genocide; women escaping the threat of "honor killings;" and people 

persecuted because of race, religion, political views, or sexual orientation seek protection in the 

United States. But all too often they end up behind bars in immigration detention, left to navigate 

an immigration system that is daunting even for native English speakers. Human Rights First's 

extensive research on U.S. detention of asylum seekers and recommendations includes: How to 

Repair the U.S. Immigration Detention System: B/ueprinr/or the Next Administration (2012), 

Jail.~ and Jumpsuits: Frans/orming the u.s. Immigration Detention System - a FH'O- Year He view 

(20 I 1), u.s. /)etention 'if A,ly/um Seekers: Seeking Protection, finding Prison (2009). In 
90 

Liberty's Shadow: Us. Detention a/Asylum Seekers ill the Era a/Homeland SecurHy (2004),1 

and Rejilgees Behind Bars: [he imprisonment of A.I)J!um Seekers ill the Wake of the i996 

immigration Act (1999). In fall 2012, we convened a series of public events across the country, 

"Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration 

Detention System," to identify best practices in criminal justice that could help bring needed 

improvements to US immigration detention policy and practice2 

IMMIGRATION DETENTION 

Every year, US. Immigration and Customs Enforcement (ICE) detains about 400,000 

immigrants - including thousands of asylum seekers - in a sprawling system of j ails and jail-like 

facilities across the country at a cost to taxpayers of $2 billion. The government's purpose in 

detaining immigrants is limited: to ensure that they show up for their removal hearings, and that 

they comply with removal orders if necessary. Individuals in detention include asylum seekers 

fleeing persecution in their home country, legal immigrants who overstayed their visas, recent 

border crossers, and lawful permanent residents with criminal convictions - for which they have 

already served any sentence - that subject them to mandatory detention or that may make them 

removable. In 2009, according to the most recent publicly available statistics, I I percent of 

ICE's detained population had convictions for UCR Part I Violent Crimes3 Almost half have no 

criminal record at all." 

The costs of immigration detention have risen dramatically over the past 15 years, as detention 

levels have more than tripled-from 108,454 detainees in 1996 to an all-time high of 429,247 in 

Sec http:,'/v,>'\tv.humanriaht5iirst.O[f!iOllf-,,,ork'rcfugcc-protcctioll,dialo0ucs-0l1-dctcntiol1 

3 Dr. Dom Schriro_ Immigratioll Detentioll Oren-jew and Recommelldations (vVashingtoll. DC: Immigration and Customs 

¥nt~fccmcnt_ 20U9> p. G_ available at hrio \".'w\y.icc 0"O\·<doclib'aboutofficcs 'odpo,'pdfiicc-dctcntion-mt.pdf. 

Jmls and Jumps1IIts, p. :2 

u.s 
91 

fiscal year (FY) 20 II. Congress has annually appropriated the funds to sustain and expand the 

immigration detention system-from $864 million seven years ago to $2 billion today. These 

dramatic increases have continued-and been maintained-even as criminal justice systems 

across the country have recognized that effective alternatives to detention can create tremendous 

cost-savings and more humane outcomes for individuals, while also achieving governmental 

objectives. Alternatives to detention cost ICE on average $8.88 per day per individual -more 

than $150 a day less than detention. Meanwhile, ICE's requested budget of almost $2 billion for 

detention in FY 2013 was 18 times its requested budget of $112 million for alternatives to 

detention. 

ALTERNATIVES TO DETENTION 

Alternatives to Detention (ATD) programs generally provide for release from immigration 

detention with additional supervision measures intended to ensure appearance and compliance. 

Several successful ATD programs have been tested in the United States over the years, including 

programs run by the Vera Institute of Justice and by Lutheran Immigration and Refugee Service 

These programs documented high appearance rates, and saved government funds by allowing for 

the release of individuals from more costly immigration detention. 

ICE's Alternatives to Detention program is currently provided by BI Incorporated, a private 

company owned by the publicly traded prison company GEO Group. A full-service program 

provides "intensive case management, supervision, electronic monitoring, and individual service 

plans," and a technology-only program uses GPS tracking and phone reporting. BI says its 

programs help "mitigate tlight risk and guide the participant through the immigration court 

process. ,,5 According to BI's annual report to the U. S. government, in 20 I 0, 93 percent of 

individuals actively enrolled in ATDs attended their final court hearings, and 84 percent 

complied with removal orders6 

5 B1 Incorporated, Inleo'jivt: Supeni::lion Appe3n:lll!.:t: Program II: An Allemativt:::l 10 Detenlion Program for the U.S. Department 

ofHomchmd Security_ (Bl Incorporated_ CY 20 10), pp. 4-5. 17,21. BI and ICE have named the full-service and tcchnology-onl~i 

program,; logelher --1SAP II"-3 nev .. ver::lion orlhe Inlen::livt: Supeni::lion Appe3fam:e Prognll11lhat beg311 3S a pilot in 2004 

oBI Incorporated_ pp. 4. 5, 17,21 
92 

The International Covenant on Civil and Political Rights (ICCPR), which the United States 

ratified in 1992, guarantees the right to liberty and the right to be free from arbitrary detention to 

asylum seekers and other immigrants. The protection against arbitrary detention contained in the 

ICCPR and other human rights conventions requires an individualized determination that 

detention is necessary7 The guidelines of the U.N. High Commissioner for Refugees and a range 

of other international authorities have made clear that detention should only be used in limited 

circumstances, and alternatives to detention should be considered before resorting to detention. 

In the criminal justice system, individuals whose cases are pending are routinely put on 

supervised release programs, or released on bailor recognizance, following individualized 

assessments of the need to detain. Tim Murray, executive director of the Pretrial Justice Institute, 

the nation's leading pretrial services organization since 1976, has said "[i]n criminal justice 

systems across the country, a dramatically growing number of jurisdictions are using 

scientifically validated risk assessments to identify low risk individuals who can be released 

pending trial without unduly endangering the community or court processes. Over the past 

decades, communities served by evidenced-based pretrial services programs have experienced 

reductions in needless pretrial detention and its staggering fiscal and social costs without a 

corresponding increase in failure to appear or re-arrest while on release."" Steve 1. Martin, 

former General Counsel of the Texas prison system, has stated, "The individuals detained by ICE 

are exactly the type of folks who should be considered for supervised release, or for release on 

bailor recognizance. When we deal with pretrial individuals in the criminal context, best practice 

is to utilize the lowest restrictions possible that will ensure court appearance. It saves money and 

reserves jail space for those who actually need to be jailed.,,9 

During Human Rights First's 2012 Dialogues on Detention, the director of the Santa Clara 

Office of Pretrial Services reported that independent auditors found that pretrial services saved 

$26 million for Santa Clara County over the course of six months in 2011. 10 The director of New 

Covenant on Civil and 16, J9GG. 999 U.N.T.S. 171. G I.L.M. 371 
93 

Orleans new comprehensive pretrial services program reported that it could potentially save 

Orleans Parish $1.4 million per year. 11 Indeed, pretrial services and other alternatives to 

detention have been endorsed as cost-savers by a diverse range of groups including the Council 

on Foreign Relations Task Force on US. Immigration Policy, Heritage Foundation, Texas Public 

Policy Foundation, Pretrial Justice Institute, Vera Institute of Justice, International Association of 

Chiefs of Police, and the National Conference of Chief Justices 

ICE should bring its practices into line with human rights standards and incorporate best practice 

in criminal justice systems and bipartisan reform recommendations by shifting its enforcement 

resources from detention to alternatives. To realize actual cost-savings for taxpayers, alternatives 

should be used in place of detention that is unnecessary rather than primarily as a supplement to 

existing levels of detention. 

There is a major obstacle to this policy change, however. The bed "mandate" in the existing 

Homeland Security appropriations bills precludes the agency from making decisions about 

detention based on its enforcement priorities, policies, and need. It also makes it impossible for 

etTective alternatives to detention and other increased eftlciencies to create cost-savings for 

taxpayers - an irresponsible approach for the federal government to take when the nation is 

recovering from a major recession and Washington seeks to reduce federal spending. But without 

an elimination of the "mandate," the $2 billion annual detention budget will continue to be spent 

to diminishing etTect. 

FAIR AND SMART DETENTION PRACTICES: ADDITIONAL REFORMS 

Under current U.S. policies, many asylum seekers and immigrants do not have access to prompt 

court review of their immigration detention, contrary to U.S commitments to human rights, 

refugee protection, and basic fairness. For example, the initial decision to detain an asylum 

seeker or other "arriving alien" at a US. airport or border is "mandatory" under the expedited 

removal provisions of the 1996 immigration law. The decision to release an asylum seeker on 

parole - or to continue his or her detention for longer - is entrusted to local oftlcials with ICE, 

I I Sec http://\,\lv'\v.hull11.mrightsfirst.org.\vp-contcnt/u pload s/pdfnol<l_ dod _ fact_sheet. pdf. 
94 

which is the detaining authority, rather than to an independent authority or at least an 

immigration court. Several other categories of immigrants - including lawful permanent 

residents convicted of a broad range of crimes, including simple drug possession and certain 

misdemeanors, as well as more serious crimes, and who have already completed their sentences -

are also subject to "mandatory" detention, and deprived of access to immigration court custody 

hearings12 

Article 9(4) of the ICCPR provides that "anyone who is deprived of his liberty by arrest or 

detention shall be entitled to take proceedings before a court .... " The 1951 Refugee Convention 

and its Protocol, to which the United States has also committed, make clear that refugees should 

not be penalized for illegal entry, and the United Nations High Commissioner for Refugees 2012 

Guidelines on Detention emphasize that those detained should "be brought promptly before a 

judicial or other independent authority to have the detention decision reviewed" within 24 to 48 

hours" In a 2012 report, the U.N. Special Rapporteur on the Human Rights of Migrants stressed 

that states should provide "automatic, regular and judicial review of detention in each individual 

case," and the Inter-American Commission on Human Rights specitlcally called on the United 

States to ensure that immigration courts be allowed to review release decisions made by 

immigration officers.'4 

Individuals held in ICE detention wear prison uniforms and are typically locked in one large 

room for up to 23 hours a day, they have limited or essentially no outdoor access, and they visit 

with family through a Plexiglas barrier. The U.S. Commission for International Religious 

Freedom concluded that these kinds offacilities "are structured and operated much like 

standardized correctional facilities" and are inappropriate for asylum seekers15 A 2009 DHS-TCE 

~: Se~ rnA § ~36((;): 8 CFR § ?O~.30, 212.5, 235.3, suu 100?19 

United NatIOns High CommiSSioner for Refugees, TJe/elltlOlI nuidelines' guidelines 011 the applicahfe criteria alld standard<; 

relatinR to the detel1tiol1 qfas.vlllm-seekers al1d alternatives to detentioll (2012) 31Ili!I~:Ji,,-\,~~:~~.un~~~[._1,.'Tg:5D5h LO_~:~J.!lxD1 

1~ Inter-American Commission on Human Rights_ Report on Immigratioll in the Ullited States: Detention alld Due Process. 

OEA/Ser.LiV'U.Doc 78/10, De!.:ember 30, 2010,,-r 139,418,529,431 

l'i U.S. Commission on International Religious Freedom .• 1sylum Seekers ill Expedited Remo\'t.d Volume II (2005), p. 189. at 

ullP~ ·/.\~~Y':\..~lil,\itCg!:-).\·_im:Jg.:~:~1.l~ri~,{h?(JLll?yll.J1.Jl. ~,~~bs:.r:±."GEB_ .RJJJY9tU,11Jt USCIRF, Expedited Removal Study Report ('ard: 

Tlvo Years Later (2007). p 5 

7 
95 

report confirmed that "all but a few of the facilities that ICE uses to detain aliens were built as 

jails and prisons.,,!6 

In 2009, DHS and ICE committed to shift the immigration detention system away from its 

longtime reliance on jails and jail-like facilities to facilities with conditions more appropriate for 

civil immigration law detainees.!7 Since then, ICE has opened TINO facilities with less-penal 

conditions and made progress on some other aspects of detention reform. ICE continues, 

however, to hold the overw'helming majority of its daily detention population injails and jail-like 

facilities, with a full 50 percent held in actual jails. 

The UNHCR, in its 2012 guidelines on detention, as well as other international human rights 

authorities, have confirmed that asylum seekers and other immigration detainees should not be 

detained in facilities that are essentially penal facilities, nor should they be made to wear prison 

uniforms but should instead be permitted to wear their own civilian clothing." As documented 

in Human Rights First's 20 II report .fails and.fumpsuirs: Trall!fformillg rhe u.s. Detellfioll 

Sysrem A Two-Year Review, and discussed during Human Rights First's 2012 Detention 

Dialogues, many criminal correctional facilities actually otTer less restrictive conditions than 

those typically found in immigration detention facilities, and corrections experts have confirmed 

that a nomlalized environment helps to ensure the safety and security of any detention facility. 

The American Bar Association, at its annual meeting in August 2012, adopted civil immigration 

detention standards that outline the conditions that should be required in connection with 

detention of civil immigration detainees.!9 These conditions include proximity to legal services, 

privacy, freedom of movement within a secure facility, access to outdoor recreation, contact 

visitation, and the ability to wear one's own clothing. 

I~ Schriro, p. 21 

1 ~ Jails andJumpsllIls: pp. -1--6, at ht:rp ~\'\"\~\'~_bJ.mFlmjgJlt~JirS>T_org_\~·p-(~Q!l1~Jlt m~trqc1_~_/r~if) ~Kl_-,~[~i15:...<J1l'hll~n}p0.l1t1~=-r~PClft.Q~if. 

!':11ing ICE, -'Fa!.:1 Sheel: 2009 ImmignlLion Delenlion Reforms," 3l1\Jlp:._,'_~V_\·~'0'j~_~,g~)\~.'Jl~_'~\--,·li1yT:JD_)·~1.s:J~Lle~!_"-·r..,,lil,}Il= 

20Q9rff(2mllmn; TCF Strategic Plan FY 20 I 0-2014 (\Vashington, DC' TCF, 201 0)_ P 6; 

ICE. "FI:lt:l Shed: ICE De1enlion Re10rm Principles and NeAt Sleps;- ne\v::; reies'jt:, Odober 6. 2009, al 

http"i/"\Y"\""\'.dhsyoy xllbrarv<l.ssctsiprcss icc detention reform faet S:lCCt pdf; DRS press conference, October 6, 2009, vidco 

re!.:onling, b~lp~~L~\l,,,~\~.g~Pfj)1~jQ~~~,-SHg:J!L()grJ;lw/~J~_901t-3-1~ and 2009 DRS,ICE Report, pp. 2-3. 

~:UNHCR, D~te.ntjo!l quid~,fjnes See ABA Cl\·tl ImmlgrallOn Detention Standmd'j al 

http 1,,,-v'1v.8.mcricanb,lf.ofg/contcnt,dam'aba,'ndministfmivCiimmia ratiol1/ai.')?.immdctstds.:tl1thcheckdam.pdf 
96 

To bring its practices into line with human rights standards and incorporate best practices in the 

criminal justice system, ICE should conduct an individualized assessment of the need to detain, 

and when detention is necessary, only use facilities with conditions that provide a more 

normalized environment Jails or jail-like facilities are inappropriate for civil immigration law 

detainees, and should not be used by ICE. 

RECOMMENDATIONS 

To bring U.S. practice into line with human rights standards and incorporate best practice from 

the criminal justice system, Congress should facilitate a transformation of U.S. detention policy 

and practice via any immigration legislation, as well as the appropriations process. These 

changes will save government resources. Human Rights First's How to Repair the Us. 

Immigration Detelltion System, a full set of recommendations for reform, is attached to this 

statement. 

Specifically, to implement an effective system of alternatives to detention and reduce 

unnecessary detention costs, Congress should: 

• Direct DHS to use alternatives in place of more costly detention when it is not 

necessary, rather than as a supplement to existing levels of detention. Detention 

should be used only when the threat to public safety or risk of flight cannot be 

addressed through less drastic measures. 

• Eliminate language referencing a specific number of detention beds in DBS 

appropriations bills. The bed "mandate" precludes the agency from making 

detention decisions based on enforcement priorities and policies, and the actual need 

to detain It also prevents potential cost-savings of millions of taxpayer dollars 

annually 

• Allow ICE to exercise its executive authority to allocate the enforcement and 

removal budget as needed between detention and more cost-effective alternatives 

to detention. The administration included this flexibility in its FY 2013 Budget 

Request for DHS. 

Q 
97 

• Prevent unnecessary detention by requiring and overseeing ICE implementation 

of a validated dynamic risk classification tool nationwide. ICE should assess 

eligibility for alternatives to detention in each individual case before resorting to 

detention, as well as assessing eligibility for ATDs periodically during detention 

• Reduce costs by recognizing that restrictive measures can constitute custody. 

ICE should consider restrictive measures that are sometimes characterized as A TD to 

constitute custody or detention for the purposes of the mandatory detention laws at 

INA § 236(c) and § 235(b)(I)(B), and enroll detainees subject to mandatory detention 

who are otherwise eligible for release (because they pose no public safety risk) into 

those programs 20 

• Support steps to reduce delays in the immigration court system. Congress, 

through appropriations for the Department of Justice, should prioritize adequate 

funding for the immigration courts, which are currently experiencing substantial 

backlogs and delays. Timely hearings and case resolutions would maximize the costsavings that can be realized through ATD programs, in addition to advancing justice 

and fairness. 

• Require the establishment of government-funded commnnity-based models and 

case management in nationwide system of alternatives to detention. ICE's 

alternatives programs should use full-service community-based models that provide 

individualized case management, increase access to legal and social service providers 

through meaningful referrals, and provide information about immigration court and 

case matters 

To address other deficiencies in U.S detention policy and practice, Congress should: 

• Direct the Department of Justice and DHS to revise regnlatory language to 

provide access to immigration court cnstody hearings for "arriving aliens." 

Even with improved parole guidance, the absence of prompt, independent court 

:0 See AILA memo, --The U'je of Eledronit: Monitoring and Other Alternalivt:'j lo In::ltitulionai Delenlion on Individual::l 

Classified under INA § 236(c)," (August 6, 2U lU). available at: w,-",-v.nilc.org/docul11cnt.htmi?id-94. No legal authority directly 

addres'jt:s DHS's di'jlm:lion 10 use alternatives 10 de1enlion f()[ mandatorily delained populations under §236(c), becau'je neilher 

the INA nor any regulations contemplated the usc of nnv tools 

1n 
98 

review of decisions to detain arriving asylum seekers and other detained immigrants 

is inconsistent with U.S. obligations under the Refugee Convention and the 

International Covenant on Civil and Political Rights. 

• Require DHS to implement standards and conditions in line with the American 

Bar Association's proposed civil immigration detention standards. ICE should 

implement standards based on the ABA's proposed standards that would permit 

detainees to wear their own clothing, move freely among various areas within a 

secure facility and grounds, access true outdoor recreation for extended periods of 

time, access programming and email, have some privacy in toilets and showers, and 

have contact visits with family and fnends. To promote compliance, these standards 

should be incorporated into contracts and promulgated into regulations. 

• Amend INA §235 and §236 to provide that all detention decisions be made on an 

individual basis, reviewable by an immigration court. Congress should revise 

laws so that an asylum seeker or other immigrant may be detained only after an 

assessment of the need for detention in his or her individual case, rather than through 

automatic or mandatory detention. 

Thank you for convening this important hearing. Human Rights First looks forward to working 

with Congress and the Administration to advance reform of the U.S. immigration detention 

system. 

11 
99 

* American Friends 

Service Committee 

American Friends Service Committee statement for the Congressional Record 

penalnlng to Iha House Committee on Ihe Judltiary 

Tuesday. March '9, 2013 

The Amerlan Friend. Service Committee IAfSCJ l.an almosUOO-~arDld faith-based Dfllanlzolion ,rounded 

In Quaker belief In !h~ dl!nity . nd worth of f1'Yerv pvwn. AFSC prDVIdl'$ j~Cl legal ",1"II1a., f~&age< In 

organizlna willllmm;",,,ts .nd lilies Incilldfni .dvoue.,. .nd movement b\J;ldin,lhrDuahout the U.s. We 

dlreClN '~PPOf! Immis,.nl' .nd reJugu worluo" .nd their communities to ors.nlle them.elve. 10 Ili.e their 

l$Sues as. way 10 affirm lheir aspiration, and needs, and 10 continue to m.~e tootrib"tkms 10 thIS ""lIOn. 

Ourlmml,nUon oolicl recommendatlGrl' l Ie lfOOnded In AFSC'. hlstofV .ncl values If. fllth·ba,ed 

or,anlutlon arid in lhe volee. oltlle communities with whom _ are duply co...-..ct".L Tke buls of U.S. 

Immigralion policy .hould De Ihe pfotection ol"uman ri,hl< and eqwl opponunlly. Effon. dMlgned loensure 

wmplilnoe wilh Immll .. l;"n I.w, mu.1 .I~ be rOOled 1n Ihe.e prlndple.of f,lme .. , equllity, and prolectlng 

Ihe human dlen11y 01 all, ""SCull, lor an e ndto Ihe delenllon arul depon.llon .... >tem Ihal "", 10m apart 

famWes, and In'tead ""cour., ... lhat tile human rlehts of IiDeny . /Id due ptoc,"" .fa enforced. 

The incre .. iflllV mll~.fl,ed U,S. borde" conllnue 10 undermine the well·beln, of border communltle •. 

Communities wilh W!IOm we work along the U.S.-Me~i«> border report a dislflmfne ranle of OnRolnl eMI i!ld 

human rilhlo .bu.n whlchlr>elude , ac",1 prolilln, and hl, . .. ment by lede .. ll_w enfOfCl!menlofflcl. ll, Since 

Ihe estlblishment 01 borde< (OOlrol policies In 1993, "I lust 7,000 mlgra n,s hive lest the ir Iflle" From 2009· 

2012, 19 Border Potro~rel e<l klilin •• of bord. r , • • idents and ml,ronts ~''''' been reported, Lick of 

acrnuntabilily and Inadequate OV""I,h\ of the Border Pltroll"v"e. un~er kuman rllhU abu.e., 

AfSC off" .. IheJollowlnl policy recommendations: 

Demllita rl le Iht U.s.·Me.k:o borde, ,nd ,,, • .e I II .nlorcement polkH!' and prictice. th' t cr ml~ITlle 

and punish ImmlKflnts. 

Prevent the ,,"Ien.ion 01 mllitadzed border op~'I;on'IO the U.S,-e..""d. border ar>d the ~l", of 

I~@U .S _ 

R~uce the ,,",nsl"" numMrs clBorder Pa,r<>il,ents wlll~ incr •• ,lnS Irw. $lm~nllf\ ov~"llht 

mechonism. for the Offic:e ollke Inspector Genertl.nd otker Independent lnve.tI",liYe bodies, 

Require border enforce"",nl a,~cieo.nd their _,ents IDCOmPiy with local. n,tion.l, and 

Inlernltionall. ",. and civil and human rilhu .lcng t~e border relion and In lhe interio' of the 

country. 

AFSCu flleS lhe (ommiltn to enrt lliilonary leederJhlp and 10 support newlmmi&rBtlon policlesthi tlespect 

Ihe hUmin ",h"and equ~ economlcoPllClnun!ty ofall in our comfl1unltleo, Th."k ~ou lorlhls oppollunitv 10 

wbmit 14$llmooy. 
100 

nFe 

UNL 

I>1=h IS. ~OlJ 

,.., .. ,.-~ ... " .. , " ..... """ ...... PC~'!l'\oIUSl. 

"", .. ,~'><1-riW ".,..h,. "'ct\.ll<U!j""'-':M 

' .. <3<1IW-.",. 

~"ml """'-"'M~j::utlS07-<U1~ , ""peI"""""'_ ' 'Io<4.~ __ """" 

FRIENDS COMMrn'EE ON NATIONAL LEGISLATION 

..• ~ Qua!..., liJbl'y ill Il,c pl(Nie ;"Imosl 

Fri~n tl $ Com,..;!!\,<, un N'l1iunal Lfei~r~ li !ln UJI' f mCnI r(,lr Ih ~ Co gl'i':!i~ 1 o'" 

I.louse Judici ~rr CU""";!!H' lIearing 

Tuesday.I'bNh 19. 2013 

The Friends COml1l1l!«' 00 National le~i~laljon. fQ\lnded in 194). is guided by (he spiritual 

va luc:softhe Religious ~icty of Fricnds (Quakers), Our ,,011; on immigralion is led by 'he call 

for right rdalions/,;ps amon); people and between individuals and God. We belie,,! Iha! ,,,specl 

for hUllIan and ci"il .ishts is css(n(;31'0 S3feguarding ,he in!e!;ric)' of our .5OI:iely anti Ihe iuhercm 

dignil)' of. 1I human bein~'S. We rccoSl1lze lha. );o\'cmmenls hD' "C an indispensable ro le in 

npiloldinH these rightS and ci ;~ens h31'e the r'\'SpOn ib 1i1Y to make go\'o:mmcms more 

responsive, open, Md 1I<'COUlllllbk, 

Therefore, we ~all for humane comprehensive. ' mmiwation reform, We ha,'c .I<:en the 

dq,''CllCfation ofthc U.s. imltliHration 5}'Sttm DI'cr jJK, lastlhrtt dccad«. Overly puuitiv .. 13WS, ill 

tnndem with in~asM mforoemc'11l nnd iIO Ulefficirnt bureautruty, h."II"e led tD syst..mit 

violatinns ofrighls; indi!oCrimin.lte raids. delemion ";tboIl1 due process. "'orkere.~ ploiIAtion . and 

families 5eparnlcd for yeats or~.., en decades. Htunflne immigration reform would reSIOre 

illlc~ty to the U.S. tr.Idition ofweicollling immigrants and prol'ide ,,,"I 'iOlu lions!O a bloken 

immigration system. We bo:liew Ih31 funtl.1meulal ar>d COlllp",henS;I'C fcfonl1 of U.S. 

iuulliHralioli JX.'licy is needed in oruer 10; 

• (',eale an oru~r y. equitable. and efficient kJ;!lI inllnigntlion syste,n: 

Enforce employment nnd labor riHhlS for all wrocrs, regardless ofimmigrlllion StaHr.; 

• Protect human and c;vil rights for 'mmlynntS cUlTenlly li vin!; in Inc Ul1iled StBte'S: 

• SUppo11 communities ",jth lal1:t' concentrations ofimmillranls and f:1cilitJle immi);mnl 

imel!lll1ion: and 

• AliJ;l1 e"foncement with humanitarian values. 

Evidence indicales Ihal border enf<)I"Cement ru,s b<."", substantially add~. The U.s. ;'l\eslS 

tllOf" in ImmigrnliOll mforccmL,n II)' Ille Dcpanmenl of fl om~land SfCllrily thlln in all O1her 

federalla'ol' cnrorc~1n,,"1 ag~'ldes combined. The militanzatiDn of the border, including the 

con~truction of ph ysical and ,·inual fcnc~'S. does ntll dfecu,el y ~tem undocumenled migration, 
101 

yet such policies have destxratcd religious sites that are sacred to Native Americans, violated 

numerous environmental laws and protections, and induced human and civil rights abuses 

am:Cling citizens as well as potential immigrants, A functioning and humane legal immigration 

sYSTem will integrate immigrantS into LIS. society, reduce pressure on the border. and allow 

federal agencies to focus on actual national secnrity concerns as well as the illegaltrafticking of 

drugs, anns. and persons across mariiimc and land borders. 

FeNL is als<) concerned about the civil liberties implication, of employer-based enforcement 

mechanisms·~ particularly a mandatory E· Verify system that wi!! undoubtedly catch citizens, 

especially those with foreign sounding names in their nets. Emp.loyer-bnsed enforcement 

systems that focus (In individuals w(Iuld reach much more widely than (Ither approaches (such as 

the vigorous enforcement of wage, hour and safety laws). If they are included in reform 

legislation. they mllst be balanced by protections of privacy, due process, am! t\mdamental 

fairness. 

Finally, we believe th31 federal immigration law> should be enforced by looerlll authorities. rCF 

ACCESS programs implemented by state and local law enforcement 3f..>encies, including the 

ilmdamcntally Hawed 287{g) and Se~'Urc Communities programs, create an atmosphere that 

subtly encourages racial profiling; lind interfere with local officers' primary task of promoting 

the safety and security ofcommullities. Such programs should not he 11 pa!1 ofa rdhrmed [i.S. 

iUl1nigration system, 

We believe that the lLS. government is capable of designing and implementing all equitable and 

humane immigration system that meets the needs of this nation and demonstrates U.S. leadership 

in compassion, fairness, and human rights. 
102 

lutheran Immigration 

and Refugee Servilce 

Ll FiS S .. ' ...... n' fOf lic:.ri"l!i' "T he Fld" ... " fCrimi"oI O"'al" .... t>r u.s. Immig"",o" and 

IO"'" n~"ccm.mt: p"Ucy on o~,i,,"?" 

Mardo 19. 1013 

1 ... ,1> .. ,,"" It"""!<"",,,", .!OJ R .. .-~ s.-r-· ...... (IJIb). ,I", ru, ..... "'1<"""''''''''' .~o.bL,ll" lo) 

I "til .... ," dn, .. d"" 'n ,1'1<0 UM<"<I S" In '" .", .. ,~Ifl'<>tt<ll"'''''', >rrL>.,.J, ,he Subc'Mnm""", ('" 

... tr."l( ,,~I.t)'·.I .... n'\Il " , •· .. "u,~' ,. ..... ...J >f'C'.I,,,1t ,,,, "run.""' ....... 'n~orc"""·rn. U RS " • "'""'It 

.,>.1 "",io'>' ;>d.<>c>,. fo< """"1,*"-"1;11< ,,>.I hunuot "''''US<>- "'(»mi. W. ~cm!y bdm'~ du'.,,~ 

"'~'"" "r """"" • .,..""" 'j ....... " " ..... ",0;1 ... ,," '''''''''U,." ')01>'''' ''"'not)' J.,,''''' '"',J .. r."...t<l> ,n , .. ""'" ... C"",.,,><"I" unx.l ...... , u' ~ r..... h\lflu"", ... -.I <"«:tI\VIl..c.tly ~n.J "w1tlCt 

A> ('~~"(",, .. I,., ~d,,,, ....... 1 '"' I"", ,U ",ft ... ".A"ImQI·' "",,~,~., b~~ r,,, ,k'C>lk.-.... ""~"'-"'.," 

Of (\1""", b .. ', N. n:potltfln.tllj .,""",>.IN, \\'1,.." od,,,,,C'IJ tQ< ",0...:... Iht .&0""""""'" 'P<""h 1 S 

,,,,,, .. ,,, ",,, .. h ,., ''''''''It'"'''~' ... ~ ...... "",,,, ~ .. I.t)' ($ ~,~ bo~.",)"".M '" I~~, (:lI,~ hillo",,).' .\ " ",h 

.,r oJII> pn<" " g. an be .,,,,",,,,,'11 '" .... 'UIIon ;"nn""''''''' <1< .... \000 ')" """ ,Iu, .. I'",pt" ... ",d II) 

0"'1<"" ....... ' "-"1""'-""-"" ,Iu. \h< 1)<1"m ~"", ol' omd."'1 S=,n'y mlu"'''" \.<,mo 'mmi~,"", 

ok"",,,,,,, botb .. <h <b,'. 0", lUb.", ~ .......... d""",.h c,.~ ... ,,,,,'»gh, ~, '" ... ,,-."""'''''''' "W"'" ,h;ot " "'-~ " .. ly '",,",'~" "",I .rbI,,..'Y. btl' .1 .. , "d, ". "', .. ",,.,,, c''''_~''ng 1'"'I, •• m. du, <,~tl), ...... 

F...,.w.,.nul hum ... , nJlbu pno<l]lIo.~ ... one, ,h. u ... vi ';",m....., .""<p'~ •• bn .. ,.,.. .. ,J <iall 

.. 1" .... "", ""'fIrn ..... 1 .. 'fIU '''~ <:I,"',,' "" ... ~ .1", It'~'..""...,,,', '>hi<'<b"C"" ,_~. If' .. "'''". II .. , . , •• , 

"",,",m "I""""." ""., .... I""'<""'u"'",··n ... l ,,,«<.I S"' .. ·."=" ,..........,."r''' .. ,'tP' •• , ,Itt,,".'" "'_" f ..... tho...., ['O""'*"- 11' ..... ,,,. bck ... r""-,,,,,,I n ......... "",I,n ~''l: ·",I .. """.", ,h< . • ru.tnno "..I >C~" I'"""'~ "" ond<firu~ <l<U'lU,"' ~, "'1gI'>I'" _ , .... ,,)' "f wi",,,, I ....... -.J """ 

.. "",,-- ""'1"""«"1><><1, ouch~. "",.,."" "I nnruft'. """'1\«>. ""l1um "'''ket'. "MI "'I .... ""I;,.;.!u;k .. ·11<> r., .. J".""«UIl'"'' """ ''"'', ..... ,r "«",,,,"<"11 irf."" 'Il<- l' '';,<r.I So .... 

"UkS·,1IrWo.1 , ...... """ ur ,.,..OIJ ""''''II) o)q,"''''~l'''''>. ",d .. ,w'!! ",,,""'" d .. , .,rr .. I<g;>l ~ 0< ..... ..1 'P ... ""I .,onl,,,, n, I"-"'frk' hdol III .nmoS"' ....... dcrc",,,,.~ .. "om",,,,,,,1 ,.., I"'MnI""'!,' ,,, .. ,,,,. ~\t .11 

m~"' .. "....J l..u.u 11 ..u.... URS J'teI;&,,,.tId C.,;O. ".-\>. r.,II,-b"..,J "'8' ''''''""~'''''ft' !;111'<~' 

"_oW .bo"" ,"" ""p;<I (.r 1k ... ",,,.n.,,,.11 ,,"pro. p111h<1da...,· "" ""~t ,~'''''-<:>I*_ \~e"flt'"' 

UMIj:R" ...... ' ... .-\"'n u"""".~, h' >dJ", .. tI ... <""!plo~,,;,,,,.r "",lttnkr." ""''''*'''''''.' 'J~'<'I'I '" 

"..,. .... , "'Ike", VII' Nn,,,,,,,,, '"0' ~ .",1 '''''flII'h<". "''' ,,~ .... + "'''¥'''I" . 

,,-L_,,, .' MoI"- n.. ,,,,, O/ .I..-.I.J,I,.,~ loI..p>._I""" I .......... ' ".. ·"",·n'P""'Xira" ,." ..... cr''V'V'''''""U, ' pl( 0.......,. M .l) • t.o;,U.I_(_ .. (,..J~'_""""I:'1G.-r>1., ........... b,o' WC!"""," ' res \"O'Pr>rb .u lm :7Jr lU-/I'tlI"'vi '" 1\' 14rll~"" II!!' " r _", (\L«I< , ... ~ 

N __ ~....,..~_Moo,_"'lO·.'· ',lO '~''''.'O ')II .• ago _""""' , .. ,~ ""'" IO.oot .. I" ,_,. ' o.'7lIJ,7!r09· ... to..,'} ,~ ". LlRS.org 
103 

Since the last time our federal immigration laws were re\vrit'ren in 1996, the scale and impact 

of imnllgmtion detention has ballooned. The current fIScal costs of immigration detention 

are staggering and largely avoidable. 

HTI!10lwm1c.n COUrt 

S~n(c th..: ta::;t 

tu S2./5 

,."',.;, .• , "Clt'r, inl{10.1, mort' than 2.3 1nIILoIl indl\,jdtuls b~l,-"L' 

thrr)ugh inIl1TIt.grabOl:r detmum '111., 34,OO:I":J,migrcllltsICl, d,'~,il" it: '(·deral, 

The ICE Office of the Public Advocate provides a ,;aluable senice to famHy members ru1d 

conunurutiies of detained Unnligrants. 
104 

bal-'ic mlt)nnatlutl to tlW:<it," afftf'ted by imnugration t'ulf)l'{'emt'nt and 

OfftC~"ts t\) pcrti)tlh t!ll;'ir dmic·". 

The composition of ICE's enormous detained population is varied and includes many 

vulnerable persQtls. When vulnerable llcopie are detained and fanlilies are separated the Joss 

to our communitie5 is irn:rrteasurable. 

Through LIltS'" pfugramm,,:iulwk, 

and (">:>r"mlmi,'., ... U>'U'"" ""~" l:;":~~::l<~';;;;~~:;'~~;;l(:~;'(~';~:~:'i~ ;;;l~~:;~~:j:!;:;;:~: ConHlllulltlcs and cumnlirtcd \vorlers and job cn:atoI'S \\ ho often kJ5{~ tli1.:ir 

hDmf.;$ i\nd bu'Sin('~s('.s as a cUnSt;{jUCl1(.C (,f imrnig-41tion dett'nrinn~ rcgilnJks~ of t.1)~, Ol.1t(I)n1(, of thctr 

irrnnig-ctt1on C:;1:31: 

f:tmily. 

prople in i,ml~l"'ti()" 

Jndividualize-d and infonned detention d:etenninations are pr~ferable to arbitrary ilnd 

overbroad detentiun mandates. 
105 

There: are proven and effec,tive alternatives. 

1.IRS mpport~ L'1CJ:cn5cd 'usc of aln:rnativcs 

to at) average of $22 a Jay ;mu nllu,-,' mign1m~ to rellilltl.' ,vlt.'I) 61Tl;ivmemb"f' and COfltritmtc tu 

NarJir>tIi:'GltitHl SCfViC'.····chc ,,,·,:d!.',e,,",',,, 

fOTfnt'll,"-, cn'atcd 

4 
106 

h..,H f' reqmn:d fO ch:trge rhen: 'lnkle monttors, "\\;hich do not iI.h\"l~' s- fvnctH'n en'f) day 

for Jppro'S:!rnatdy t\vo hon1:5 dunng \vh';ch t1mt (h(';, nn1::3t s:it cunn('ctt'd to ")H"kctrical (lUrler. 

URS ReconlDlendations to Congress: 

• R<'(j111re :U1Y ff'strinto(l of lilX'Jty rn lx" the it~;)st r~3itf!.ttj\,f.:' form ()f nl~fiJdy f)f·C(,~Si.ll~: ,mll 

P1'0p1)rt.iOH2tt' t~)· nteN gfwcmUK'ut jntu(:<;ts. 

• Ensure O-CC:C!'\S to judirl8.1 n;,~.ie\,.' (If any J-tcci:;inn to rc!>tricr libl'rty, indw.Hng hut not limited to the 

u~w of d(:tcnnon. 

fedl'ral .:;tafntcs that m~mdatC' dC'tl'ntton \Ylthom 311 tndi\"iJnallz{'d agSe~5m('m of t11i: need 

n:al pnbiic ~art'ty thR',lt or a dernnflMrated rhk o( flighr that "",.11 11)"t ()(h,'.,.wisc 

be mitigattJ. 

Ifynulm'r n"yqu"stHHH,bulltlh" staremcnr, pk·J.se coomer B!'mnt~y :-":)"strom, i}iH~ctOi' for 

626,,:94,1 01" yja t>ll"t::JiJ at Ql1}.iilli.:m1(alhl'$.(~, 

prinCiple" fo'( imnllg41tion 

rd"01'11i 

• IIR1\ FAQ'~ on the Family Immi.!:,rtation :j:y':;tcr:n tn~ly be read litre: \\"W\vJ?lt,k il1l~ 

• The Dcc~'f!)bf'l' 
107 

Statement for the Record 

House Committee on the Judiciary 

"The Release of Criminal Detainees by U.S. Immigration and Customs 

Enforcement: Policy or Politics?" 

March 18, 2013 

The National Immigration Forum works to uphold America's tradition as a nation of 

immigrants. The Forum advocates for the value of immigrants and immigration to the 

nation, building support for public policies that reunite families, recognize the 

importance of immigration to our economy and our communities, protect refugees, 

encourage newcomers to become new Americans and promote equal protection under 

the law. 

The National Immigration Forum thanks the Committee for holding this hearing on the 

matter of immigration enforcement and alternatives to detention and urges the 

Committee to look at immigration enforcement as part of broad immigration reform 

that includes an earned path to citizenship. 

One symptom of our broken immigration system is the exorbitant spending wasted on 

detaining hundreds of thousands of immigrants annually. Physical detention, as costly 

and severe as it is, should only be used in limited circumstances, such as for holding 

immigrants whose release would pose a serious danger to the community. For many of 

the individuals currently in immigration detention, the government could use less 

expensive alternatives to detention to serve their needs. Billions of dollars could be 

saved if the government reduced its overreliance on detention and properly allocated 

resources towards more humane and cost -effective alternative methods of monitoring. 

This past month due to what has become known as sequestration, Immigration and 

Customs Enforcement (ICE), located in the Department of Homeland Security (DHS), 

began prioritizing detainees, releasing some immigration violators who pose no danger 

to the community. In the month of February, ICE stated it released 2,228 individuals 

from ICE custody. However, ICE's overall use of discretion has been limited so far, and 

resources are still being used to detain and deport aspiring citizens who pose no risk. 

Despite a more focused approach for immigration detention by DHS in the last two 

years, the budget for detention remains very high, with the White House requesting 

over $5-4 million per day for detention in its FY2013 budget request. The Senate 
108 

Continuing Resolution (CR) begin considered this week would spend over $2 billion for 

the remainder of FY13 and maintain the current requirement of 34,000 detention beds." 

Two figures are used in calculating the average daily cost of immigration detention per 

person: $122 per daily bed is the number ICE provides in its FY13 Budget Justification 

documents for detention costs, but $164 per daily bed includes ICE's operational 

expenses and salaries associated with detention. 

• $1,959,363,000 FY 2013 Presidential annual budget request for custody 

operations / 365 days in a year = $5-4 million per day. 

• $5-4 million per day / 32,800 immigrant detainees = $164 daily cost to tax payers 

per immigrant detainee. 

Detention should not be used as the default approach to enforcing immigration laws. 

Less wasteful and equally effective alternatives to detention (ATD) exist. They range in 

cost from as low as 30 cents to $14 a day. If ICE limited its use of detention to 

individuals who have committed violent crimes, the agency could save nearly $4-4 

million a night, or $1.6 billion annually-an 82% reduction in costs. Also, it is important 

to note that in FY 2010, the last year for which appearance data is available, ATD 

programs appearance rates for immigration hearings was 93.8 percent. Therefore, an 

examination of the numbers makes it clear-the dollars spent to detain immigrants do 

not add up to policy that makes sense. 

Fiscal accountability by the Federal Government is critical in our current economy, yet 

immigration detention continues to raise enormous fiscal concerns. Many non-criminal 

aliens are still detained in expensive facilities, both local jails paid for by ICE or ICEcontracted detention facilities, when less expensive alternatives that still maintain 

immigration integrity by ensuring appearance for removal hearings are available. The 

government must be prudent with its limited resources by detaining only those who 

actually pose a risk to public safety or have previously demonstrated that they are a 

flight risk.. Prioritizing the use of scarce resources is the responsible thing to do, is 

consistent with other immigration policies, and will help accomplish the important 

objective of promoting national security. 
109 

NATIONAL 

IMMIGRANT 

JUsnCE CENlER 

A HEAIttl.ANI AUWICE f'ROOflAA1 

Statement of Mary Meg McCarthy, Executive Olrecto!' 

Heartland Alliance's Natlonallmmigranl Justlce Center 

SUbmitted to the HoI.ISe Judiciary Committee 

Hearlngon the Release of Criminal Detainees by U.S.lmmlgratiOl1 and Customs Enforcement 

MarCh 19,2013 

Chairman Goodlatte. Ranking Member Conyers, and members of the Committee. thank you for the 

opponunity to subm,t testimony for toddis hearing. 

Heartland Alliance's National Immigrant )U$l.ice Center (NUC) Is a nongo"1lrnmental organiz81io!1 

dedicated 10 ensuring human t'ights protections and access to jUstice lor ImmIgrants. refugees. and 

asylum seekers. through al'ee! legal representatioo, ad~ocacy. Impact litigation. and education. 

Since Its founding 30 ye<lrs ago. NUC h.*saleguarde<l the rights of non-eitilens, pal'tlcu1llfly those 

held In Immigration detention. Each ye,af, NUC allllits network of 1.500 pro bono attorneys Provide 

legal counsel and representation to neilrjy10,OOO IndIviduals. m<I~ing It the largest legal servk;e 

p<ll'JIder for noo-cltlzens, NUC condUC!:i "Know Your Rights· presentations In Immlgrntlon detention 

fad lities. operntes a detention hotline. aod responds to correspondence Irom Cletainees throughout 

the country. In each capac~. NUC encounters IMivlduals who pose no threat to our communities. 

lind should not be detained, 

As co-chalr of tM Department 01 Hometand Security (DHSIINongo~el'Jlmental Organtzatlon 

emorCtlrT>8nt Working GrouP. WhIch includes 100 Immigrant tights organizations. legal aId providers, 

and academics. NUC facilitates ongolnndlalogue on issues of Immlgratiofl enlo.cemenl aod 

Cletention. NUC is a leading voice within tile Midwest Coaliliop lor Human Rights. a networ~ of 56 

organIzations that promotes !lfld protec:ts human rights In America's heartJ!lfld. In these and other 

coalitions. NIJC shares Its on-the·groun,j experience to <K1vocate for policy changes. 

It is good policy to create afld malfl\llln a cost·eflective Immigration detention s)'!item that respectS 

due process. America has bum a massive Immigration detention $)'Stem which unnecessarily 

(letalns thousands of If1(I ~iduals (lally. Including asylum see~ers. longstanalng community memr:oers. 

children. and many others who pose no threat to SOCiety. DetaTflM immigrants do not have aocess 

to appolnle<l counsel. and Without attorneys- or Information about their ri!!nts. they a.e particularly 

vulnerable. 

In 2009. the Obama administration anllouncOO a series of reforms to create <I more "civil" 

immigration detentkln s)'Stem. recollnlzifl!! that the Vilst majority of men and women I~ DHS custody 

do not have criminal histories ana pose no threat to the community. The administration's 

commitment to create a "IIUIV eMI" Imrniglation deUlIltlon - one that Includes SOllnd medical care. 

adeauate O\'ersignt mechafl!sms. and fis.cally prudent detention practices - 1s)'ll1 to be realized. 

Today.l would like to outline three steps t~~t this COmmittee can take Immediately to Improve our 

immigration detention system. partJcul;lrly In ligntof the recent seql.lestraVon: 1) eliminate tne 

detention bed quota; 2) increase fundIng for ~d use of attefnatWes to detention programs: arid 3) 

glY1l the Immigration court s\",>tem adeQuate resources and allow Judges to review detention 

decisions. 
110 

Eliminate the Detention Bed Mandate 

Testimony of National Immigrant Justice Center 

House Judiciary Hearing on ICE Detention Releases 

March 19, 2013 

Immigration detention is the fastest growing incarceration system in the United States.' Each year, 

DHS spends more than $2 billion to detain more than 400,000 men, women, and children in a 

patchwork of 250 facilities, including county jails and prisons operated by private corporations. A 

majority of individuals in immigration detention do not need to be detained and pose no threat to our 

communities. A USA Today report from last month exposed internal U.S. Immigration and Customs 

Enforcement (ICE) memos pressuring officers to target immigrants without a prior criminal record or 

with only minor offenses to boost its enforcement statistics.2 

Several months ago, two Rwandan women came to the United States seeking asylum and were 

immediately sent to a detention center in Georgia, where they remain detained despite several 

efforts to have them released. In addition, an NIJC's client remains detained after 18 months, even 

though he has no criminal record and is a victim of constant harassment in detention because he is 

gay and acts effeminately. In response to ICE's recent release of detained immigrants across the 

country, DHS Secretary Janet Napolitano stated, "there were some very, what I would call very lowlevel, low-risk detainees that could be put in a supervised release program."3 The reality is that 

these individuals do not need to be detained. The reality is that we lock them up to meet an arbitrary 

and costly quota. 

DHS and some members of Congress interpret appropriations language to mandate a daily detention 

level of 34,000-a micro-managing approach that does not exist in any other law enforcement 

context. The bed "mandate" steers the agency away from making decisions about detention based 

on its enforcement priorities or true public safety concerns. Instead, this perceived mandate creates 

an arbitrary quota that unnecessarily drains government resources. It deters DHS from pursuing 

cost-saving measures, such as alternatives to detention, which ensure individuals' compliance with 

enforcement policies and provide for an efficient immigration adjudicative process at a fraction of 

the cost. 

DHS should have the flexibilityto do itsjob efficiently and effectively. At a time when the nation is 

recovering from a major recession and seeking to reduce federal spending, it is irresponsible for 

Congress to mandate DHS to maintain an unnecessarily costly detention system. Congress rnust 

eliminate this mandate. 

II. Expand Alternatives to Detention Program 

If Congress permits DHS to use money now tied up by the detention bed quota to expand the use of 

alternatives to detention programs, the agency will be able to fulfill its mission cost-effectively and 

humanely. The U.S. government spends $164 to detain one person for one day" Existing 

alternatives to detention programs cost as little as 17 cents per day per person. 5 

1 PBS Frontline, ~Lost in Detention," (October 18, 2011), available at: 

lljJplNLW~JJJJX~,~I'&:\"!fLbJ1!!29-.a~_s-"JmIJtILrI§/Lgp~JTtultj§JJlt~lr~J/lQ_~t-1D"1teJ~nlloJJ!r:mu~-tb~-u~~i01fl!iili8tjQJ!.::_Q~JentiordJQQcn! 

2 USA Today, "Immigration tactics aimed at boosting depoliations," (February 17,2013), available at: 

f1t~Q:l/wwVJc_u_:wlQdJJhCQrDj~lQrYLnf)_w~LnatlQI1:~2DJ3LQ2jl::lilmt:rjgrQUQo:(:Xit111iJQL-d0J)9JifltL0!13Qr.grt~jj SU_9137l 

-' Politico, ~Playbook Breakfast," (March 4, 2013), available at: http:! Nj"Y~:V{,P9ILti~Q"~PfnfJ111lItiC(W(;H9LYill§"Q;:2"Ol3LQ~Lj~tn~J. 

nfillQlitQ!.1..Q-jm~o.lgm..o1:gi1a.lD.J;tQ.s":.~t9frOQt -Be cJJ.rB1c..JltITll. 4 National Immigration Forum, ",he Math of Immigration Detention: Runaway Costs for Immigration Detention Do Not Add 

Up to Sensible Policies," (August 2011), available at: 

b!1Qdm~~'t£,.l.rDtnjg[91LQlltQWJIi ,QC&in1Q&.Q2LYQIQJill.sirna.tbGfim mj&mtillll®I.Q.ntiQ..DJ)...91 5 See tlttp:/ /WWVo.! reuters.com/aliicle/2013/03/Q1/us-usa-fisc<1l-irnrnigration-idUS[3RE92001120130301 
111 

Testimony of National Immigrant Justice Center 

House Judiciary Hearing on ICE Detention Releases 

March 19, 2013 

Nearly a decade ago, the Australian government's immigration detention system was expanding 

quickly and becoming more costly, yet the nation was unable to meet the basic needs of its 

detainees. In just five years, Australia implemented a robust alternatives to detention program, 

detaining non·citizens only as a last resort. Moreover, the detention of individuals was restricted to a 

specific length of time and judges would automatically review detention decisions to ensure due 

process. 

While Australia's system is smaller than the U.S. detention system, we urge DHS to incorporate 

Australia's best practices, which NIJC highlights in its report, Creating 'Truly Civil' Immigration 

Detention in the United States: Lessons from Australia. "6 Congress should also look to successful 

models in the United States, including programs run by the Vera Institute of Justice and Lutheran 

Immigration and Refugee Service. Both programs demonstrate high court appearance rates, from 

91% to 93%, as well as compliance with deportation orders.' 

III. Reallocate Resources to the Immigration Court System and Allow Judges to Review 

Detention Decisions 

Immigration detention is civil custody, in which individuals are being held for immigration violations. 

They are not being punished for criminal conduct, and more than half of immigration detainees have 

never been convicted of a crime.8 Of those with criminal convictions, most are nonviolent and/or 

minor crimes and individuals have already served their sentences. 9 These individuals are held in jaillike settings, but because they are not being charged with crimes, they are denied procedural 

protections, including access to counsel ifthey cannot afford an attorney. 

To protect due process - and ensure that DHS does not waste money to detain individuals who can 

be placed alternatives to detention programs - immigration judges should be given the authority and 

resources to review all detention decisions. Currently, immigration judges can only review bond 

determination for certain categories of immigrants. Immigration officers, who often are ill-equipped 

to make this judgment, decide the vast majority of bond determinations. As a result, immigrants are 

detained for months - and some for years - at great financial cost without ever knowing when they 

will be released. 

Moreover, DHS has needlessly cost taxpayers hundreds of millions of dollars each year by choosing 

to interpret "custody" as only encompassing physical incarceration - an interpretation not even 

followed in the criminal justice system. Annually, DHS spends over $2 billion to detain over 400,000 

immigrants during their immigration proceedings. DHS takes the position that the majority of the 

ann ual detention population is subject to mandatory detention pu rsuant to provisions of the 

Immigration and Nationality Act (INA), in particular INA § 236(c), 8 U.S.C. § 1226(c). Under that 

provision, DHS is required to take into custody non-citizens who have been convicted of certain 

criminal offenses. While the statutory provision calls for mandatory custody, DHS has interpreted 

"custody" to mean mandatory, physical detention. This provision alone accounts for likely $1 billion 

6 National Immigrant Justice Center, "Creating 'Truly Civil' Immigration Detention in the United States: Lessons from 

Australia," (May 2010), available at: .b:t!Q:L/ill1migrantjustice.oj'p/civildc;tcntionreoort 

7 Lutheran Immigration and Refugee Services, "Alternatives to Detention Programs, an International Perspective," (June 

2009), p. 2 at t1tw;1119S;Q-"-111tlQn,.Qre..liirs:§lteCQatjv~~_-tQ-(tet©lJtiQn:RCQgr9mSr;ln-lnt~mf.!ti9Jt~tj)~rsJEGtl\{t"/ 

8 ICE "ERG Facts and Statistics" available at: bIDm~~llill,gg~lct.mjLb1fQtaLr0[lQr§l~9_-facts-..l11Jj~tati5liQ;;J2ftt. See 

Migration Policy Institute, fmmigration Enforcement in the United States, 128, available at: 

t~ttD"LL\&:Y:L""i,migrillillDJ19UCY,Q[gLp.JLQ~~!JtQJT~JIlf~utR-lllqr5.,Q(j£. 

9 TRAC, U.S. Depoltation Proceedings in Immigration COUlts at 

11ttp:1 /tt";]c.svr.etiu/pflptools/imrnigration/ctlarges/(ieport fillne\" chal·ge.prlo. 
112 

Testimony of National Immigrant Justice Center 

House Judiciary Hearing on ICE Detention Releases 

March 19, 2013 

of ICE's detention expenditure, Legislative language is needed to fix this problem and clarify who is 

subject to physical incarceration. 

Providing judges with the legal authority to review the decision to detain individuals and reallocating 

resources from the detention system to the court system would allow immigration judges to more 

promptly adjudicate cases and would reduce the number of detained individuals. 

Conclusion 

It will be virtually impossible to fix the immigration detention system as long as the government 

continues to arrest and detain record numbers of men and women who pose no threat to society. 

Eliminating the detention quota, activating alternatives to detention programs, and reallocating 

funding to improve the immigration court system are three steps Congress must take now to improve 

the immigration detention system and reduce its financial burden. 

DHS's decision to release men and women from immigration detention in preparation for 

sequestration proves a point that NIJC and many other immigrant rights advocates have made for 

years: There are far more cost-efficient ways to manage immigration enforcement in the United 

States. Those who were released now have the opportunity to remain with their families and have 

better access to legal counsel as they pursue their immigration cases, and they will do so at a great 

fiscal savings to the U.S. government. We hope that Congress heeds this lesson and NIJC's 

recommendations as it continues its work to create a new immigration system. 

I thank you for the opportunity to present this testimony on the urgent need to reform America's 

failing detention system. Should you have any questions, please feel free to contact me at 

mmga rthy@h,,-a rtlandaIU.9lJce.m:g or at 312.660.1351. 

4 
113 

STATEl\lENT mR nlE RECORD 

0" 

"O\'l'rsighl !learing: Immigration Enforcement" 

Subrnined to the 

Houst Judicilll'Y Commillee 

Ma rch 19, 1013 

III 

WQMl:N 'S REfUG E E COMr,"SSIOH 

By Americans for Immigrant Justice and Women's Refugee Commission 

Americans for lmmig.rllnt Justiel.' and the Womcn'5 Refugee Commission welcome the 

House Judiciary Cornmillee's oversight hearing 011 Immigration Enforcement. The 

Commillee's consideration of the implications of the recent decision by the Imm igrant 

and Customs Enforcement agency (ICE) 10 release hundreds of low-risk immigrant 

detainees as II pre-sequester, COSt savings measure is well -lim!!d. Given the fiscal crisis 

now facing Ihe United Stalc_s, it is prudenllo examine whether II Congressional mandate 

10 the Depanmcm of HOllleland Security (DH S) to fi ll an e.xplici t number of immigration 

dctemion beds on a daily basi$ is appropriate, In addi tion to the opportunity to 

implement a more fiscally sound deteotion policy iJ1Creasing the use of cost effective and 

efficient altemati\'es. this is an historil: opportunity for Congress to realign the 

immigration detention system with our national values of treating all humans with dignity 

and respect_ 

The /I/I/11igrtlliol/ De'ell/ifm Sy ~lel/l: Q/lick F(ICI ~ Gild Fig/lres 

ICE is located within DHS and uperates the nation's immigration detention system. In 

Fiscal Year 20 12, the average daily population in ICE facilities was ,14,Qoo with an 

average cost of$l66 per person pef day. I In Fiscal Year 2010, 392,000 individuals were 

held in an ICE facility ,l 

I hllllJmc\\. ,ah,"\O ~"miimmutrunl.-I''''\ ~h .. £:hu\III'-'''''-f'O'''JH.i'mp;,~,~>~ )lI4)j) I '15 h(nll f' 'Il,e I<)I ~I 

,""ru ~o ni~Jnl y w;<t to 1~:\",,\ "" 10 del. m un ilkg,t Immign<nl. onduJin!l-lwahh Co", "nd ~u nIs' "" lnl1"", 

IS " boJUI $t66. ICE -.; ", li mlcd " ) 

1 Nl h~,. 1 [,,,m'IIII "ol\ 1'", "",.1"h.< Mqlh CJ[ 1",no;~"-Mi"' , Q.1' '',/rJII ~ 11\,'8' l). 

~tlr ""'''.r''''''' .... ''' "r~"u" 11f' ·"llOI!!,,,,· upl ood"'Malh<lllm'"'!m1ioo[)o:t,,,," on rolf 
114 

ICE holds immigrant detainees in three different types of facilities. ICE contracts with a 

network of 250 state and local jails as well as seven Contract Detention Facilities (CDF). 

The CDFs are owned and operated by private companies under exclusive contract with 

ICE while the state and local jails or Intergovernmental Service Agreement Facilities 

house federal immigration detainees alongside their criminal inmate populations under 

intergovernmental Service Agreements with ICE. The private prison companies with the 

majority of all contracts with iCE are Corrections Corporation of America (CCA) and 

GEO group. In addition, ICE uses six Service Processing Centers which are federallyowned facilities that are operated by ICE staff and/or contractors and which house about 

13 percent ofICE detainee population3 

Who is TJelained hy ICF;? 

Non-citizens enter ICE custody in a number of ways. if they arrive at a port of entry at 

the border of the United States without proper documentation (such as a valid visa) and 

express a fear of returning to their home country will be detained pending further legal 

proceedings. They may be may be apprehended during enforcement sweeps conducted 

by DHS at their homes or workplaces. Finally, a large segment of the detainee 

population enters the detention system directly from state or federal criminal custody. 

This referral from criminal custody to immigration detention is done using "detainers." 

While certain immigrants with criminal convictions are subject to mandatory detention, 

most are eligible for release if they can demonstrate to ICE officials or an Immigration 

Judge that they are not a flight risk or a danger to the community. Despite fears and 

concerns over the release of hundreds of immigrants from detention in advance of the 

sequester, the truth is that most immigrant detainees have no criminal convictions. 

indeed, 77 per cent of the individuals detained by ICE through the detainer process have 

no criminal conviction4 The outrage and fear that individuals have expressed at these 

releases should be targeted at the government officials who have needlessly spent 

millions of dollars a year to hold hundreds of thousands of non-criminals when less costly 

alternatives to detention and alternative forms of detention exist. 

Rroward Traflsilional Cel/fer: A Case F;xample 

These detentions include several current women who were assisted by Americans for 

Immigrant Justice. One example is Carmen5 who fled to the United States seeking safety 

from an abusive domestic partner and another assailant who nearly killed her with a 

machete. Apprehended at the border in Texas in 2012, she was detained at the Broward 

Transitional Center (BTC) in Pompano Beach, Florida and placed in removal proceedings 

where she applied for asylum. As she began to display symptoms of post-traumatic stress 

disorder and depression, BTC medical staff identified her as a victim of domestic 

violence and made arrangements for Cannen to seek therapy at a local domestic violence 

shelter. 

Mter Carmen had been detained for more than six months, AI Justice requested her 

, http://www.icc.gov/ncws/librmy/factshccts/dctcntion-mgmt.htm 

4 hltp:/ltrac.syr.edu/immigrationlreports/3101 

5 The clienr s name was changed to protect her privacy. 
115 

release, providing documentation to her deportation officer that Carmen had family 

members in the United States who were able and willing to support Cannen throughout 

the pendency of her asylum case. Both Carmen and her attorney were told by ICE that 

detainees are not released while their cases are on appeal and so Carmen continued to 

languish in detention. Carmen was finally released in late February with no explanation. 

In total, Carmen had been detained for 9 months. At this point, ICE had paid an average 

of $124-$164 per day to GEO Corporation, which has an ICE contract at BTC, to detain 

Carmen. Thus, taxpayers paid approximately $30,000 to detain, not a criminal, but an 

asylum seeker and a domestic violence and torture survivor. 

While critics may argue that the failure to release Carmen is a rarity in a larger, wellfunctioning system, this is not the case. Of the women who contacted AI Justice 

following their release from BTC in late February, only one had a criminal conviction: 

for driving without a license. Eight out of 9 had passed a reasonable fear interview, 

credible fear interview or applied for a U-visa. The ninth woman was a non-criminal, 

failed asylum-seeker from Haiti who was not subject to removal to Haiti under current 

Administration policies. While the time spent at BTC ranged from 1 - 5 months, none 

of these women came directly to BTC. Most were held at detention facilities along the 

border and transferred at least once before arriving at BTC. These women include: 

Marilu first came to the U.s. about 10 years ago where she met Andres who 

promised to help her regularize her status. Instead, Andres took her documents, 

threatened to have her deported and began to rape and beat her regularly. Years 

after the birth of their son, she escaped from Andres, living with her son and 

trying to start a new life. She was apprehended for driving without a license, put 

into removal proceedings and removed to her home country. She was forced to 

leave her son, Juan, behind in the care of a friend. Back in her country, Marilu 

worked hard with the hope of bring back Juan when her family began to be 

threatened by gang members. Fearing for her life, Marilu fled to the US. She was 

transferred to BTC where she expressed a fear of return to her country. Marilu 

passed her Reasonable Fear interview with an asylum oUker. After almost 5 

months of detention, she was released and placed on an order of supervision. She 

is currently in withholding only proceedings and is reunited with her 8-year-old 

son. 

Maria who fled her home country leaving her three minor children behind to 

escape her abusive husband. She passed her Reasonable Fear interview with an 

asylum officer. She was released after almost 5 months in detention. She is 

currently in withholding only proceedings. 

Alternative Forms of Detention and Alternatives 1'0 Detention 

There are other options for individuals like Carmen, Maria and Marilu who were each 

held for over 5 months in a penal detention environment Alternatives forms of detention 

and alternatives to detention (ATD) have been consistently proven to ensure that 
116 

individuals in immigration proceedings appear for hearings and deportation. There are 

many forms of alternatives including releasing people to a responsible sponsor or family 

member, with information on when they need to appear before a court (like many pretrial programs do in our criminal justice system across the country), requiring periodic 

check-ins with a detention ot1icer or case worker or something more restrictive like house 

arrest or GPS programs for those who may present a higher risk of flight. Additionally, 

community support programs are in their early implementation stages for immigration 

detainees, but have long been used for criminal and delinquent detainees. 

ICE runs three AID programs: Intensive Supervision Appearance Program (ISAP) 

which employs contractors who monitor participating immigrants using: telephonic 

reporting, radio frequency, global positioning system, and unannounced home visits; 

Enhanced SupervisionlReporting (ESR) a contractor-operated program that uses the same 

monitoring methods as ISAP and Electronic Monitoring (EM) which is operated by ICE 

and is available to immigrants residing in locations not covered by the ISAP or ESR 

contracts. EM monitors immigrants using telephonic reporting, radio frequency and 

global positioning technologies. 

Expert studies consistently find AID yield high compliance rates and are therefore an 

effective solution to the costs of detention without sacrificing compliance. Tn FY 2010 

the government's ATD programs yielded a 93.8 percent appearance rate for immigration 

hearings, which exceeded the target rate by 35.8 percent. In 2009, ICE reported 

appearance rates of 87 percent for TSAP participants, 96 percent for ESR participants, and 

93 percent for EM participants'" 

Cannen reports that when she was released from ETC, she was fitted with an ankle 

monitoring device through the ISAP office in Miami. Carmen then traveled out of state to 

live with her family members who have been waiting to assist and support her for 

months. When Carmen reported to ISAP in that state they removed the ankle monitoring 

device and ISAP is continuing to monitor her via regular home visits and telephonic 

reporting. 

The average cost of altematives can vary from 17¢ a day to $44 a day depending on the 

level of restriction or services provided7 At best, this represents a savings of from $80 to 

$163.83 per person per day over incarceration in immigration detention facilities. 

Conclusion 

Now is the time to truly embrace alternatives to detention that allow us to implement rule 

of law more et1iciently, for less money and more humanely than outdated and expensive 

methods of imprisonment. It is an opportunity to benefit from American ingenuity and 

enter a new age. Some members of Congress have argued that releasing detainees was 

not necessary as ICE has a surplus in its budget. This is not good fiscal policy. IfICE is 

able to fulfill its mandate to detain only those individuals who face mandatory detention, 

: www.ice.gov/pilnews/factsheets/altemativestodetention.html 

hi tp://www.detentionw"tchnelwor1..org/sites/detentionw"tchnel w or1.. org/fileslD WN%2 OA TD%2 OReporl % 

20FlNAL _ OS-25-20l O.pdf 
117 

pose a flight risk or pose a danger to the community with less money than it has been 

authorized to spend, the money should be returned and used for other purposes to reduce 

the federal defi ci 1. 

Congress needs to be held accountable for directing the unnecessary detention of 

thousands of people at great expense to taxpayers and our communities. The costs of 

immigration detention go further than the direct cost of paying for prison beds. The use of 

a penal, prison-based system to detain asylum-seekers, parents, business owners and 

homeowners has a devastating effect on our communities and economy. We can no 

longer aiIord these social, fiscal and civil liberty costs. Instead we should be investing in 

evidence-based alternatives to detention and alternative forms of detention that allow 

people to remain with their families and continue to contribute to their communities 

throughout their immigration proceedings. 

See attached case summaries 
118 

Case summaries of some women released from BTC around 0212512013 

*Please note that all names are pseudonyms* 

Emilia fled from her home country, leaving her 4 children behind, in an effort to escape 

her abusive spouse. Emilia had been hit in the head so many times by her spouse that she 

frequently has headaches and feels dizzy. She reported her abusive spouse to the police in 

her home country on three separate occasions. The state even issued a restraining order 

against him. But Emilia's husband continued to brutally abuse her to no avail. 

Unfortunately, in her home country, the police often do little to enforce restraining orders 

and despite her efforts Emilia could not escape her husband's abuse. Finally, Emilia t1ed 

to the U.S. to find safety. Emilia was eventually transferred to BTC where she expressed 

that she had a credible fear ofretum to her home country. After her credible fear 

interview, the asylum officer made the determination that Emilia had a credible fear of 

return. Emilia was then released around 02/25/2013. Emilia's release is in accordance 

with DHS guidelines that stipulate that asylum seekers who are found to have a credible 

fear of return should be released and paroled during the pendency of their asylum 

proceedings. 

Arrived at BTC 12/22/2012 

Raquel fled her home country, leaving her three minor children behind, to escape her 

abusive ex-husband. Raquel had been married to her husband for over 20 years, most of 

which she suffered brutal abuse. Raquel's husband would constantly beat and rape her. 

He would also abuse their small children. Desperate to escape him Raquel tried to leave 

him over 15 times but to no avail. Every time she left he would always find her and force 

her to be with him again. Raquel reported him to the police two separate times and 

obtained a restraining order against him, she then was able to obtain a divorce. 

Unfortunately, despite all of her etIorts her ex-husband would not accept that Raquel no 

longer wanted to be in a relationship with him. He continued his threats and abuse until 

finally Raquel desperately feared for her life and fled to the U.S. seeking safety and 

protection. Raquel was transferred to BTC where she expressed a fear of return to her 

home country. Raquel underwent a Reasonable Fear interview (she had previously 

entered the U.S. and had an old in absentia order- don't know if you want to include that) 

and was determined to have a reasonable fear of return by an asylum officer. Raquel was 

released on 02/2512013 and put on an order of supervision during the pendency of her 

withholding only proceedings. 

Arrived at BTC 01116/2013 

Dana t1ed to the U. S. to escape dangerous individuals who had murdered her uncle. 

Dana's grandmother reported the crime to the police in her home country and cooperated 

with the authorities in an effort to bring the murders to justice. Unfortunately, the 

individuals were not prosecuted. The individual threatened to kill Dana's entire family 

for reporting the murder. Fearing for her life, Dana fled to the U.S. Dana was eventually 

transferred to BTC where she expressed a fear of return to her home country. She was 

released from BTC around 02/25/2013. 

Arrived at BTC 0211912013 
119 

Ana is an 18 year old indigenous girl from a very rural area of Latin America. She lived a 

normal quiet life until one day individuals began to exhort her family for money. Being 

of humble means her family was unable to pay what was demanded of them. Then one 

day Ana came home from the countryside to see that her father had been murdered and 

her family home had been burned down. The individuals then began to threaten Ana and 

her mother and told them that if they reported what happened to the police that they 

would be next. Fearing for her life, Ana fled to the U.S. Ana was transferred to BTC 

where she was put into removal proceedings before the immigration judge where she was 

seeking asylum. She was released around 02/25/2013. 

Arrived at BTCOl/24/2013 

Mary, a victim of the earthquake that decimated Haiti in 2010, came to the U.S. fleeing 

from the danger and poverty that became her daily existence after she lost her home. 

Mary was detained at BTC for about 2 months (she underwent the credible fear process 

and was denied both by the asylum ot1icer and the IJ- she ultimately did not have a strong 

claim. I don't know if you want to include that, I think its irrelevant since they should not 

be detaining any Haitians in the first place since their policy is that they are only 

deporting those with criminal history to Haiti) She was released around 02/25/2013 to 

her brother who is a U.S. citizen and had been anxiously waiting to assist and support his 

sister. 

Arrived at BTC 12/0312012 

Maria fled her home country leaving her three minor children behind to escape her 

abusive husband. Maria tried to enter the U.S. twice in an effort to escape her husband's 

abuse. Maria was eventually transferred to BTC where she finally felt comfortable 

sharing that she feared going back to her home country due to the domestic violence she 

sutfered at the hands of her husband. Maria underwent a Reasonable Fear interview and 

was determined to have a reasonable fear of return by an asylum officer. Finally after 

almost 5 months of detention, she was released around 02/25/2013. She is currently in 

withholding only proceedings. 

Arrived at BTC 09/25/2012 

Marilu first came to the U.S. about 10 years ago. Unfortunately, her dream of coming to 

the U.S. quickly turned into a nightmare. Shortly after her arrival she met Andres. Andres 

promised to help Marilu regularize her status. Unfortunately, Andres took her documents, 

threatened to have her deported and began to rape and beat Marilu regularly. As a result 

of the rapes Marilu became pregnant and gave birth to her U.S. citizen son, Juan. Mter 

years of abuse, Marilu was finally able to escape from Andres. She lived with her son and 

tried to be the best mother that she could. Marilu was eventually apprehended for driving 

without a license, put into removal proceedings and removed to her home country. Marilu 

was forced to leave her son, Juan, behind in the care of a friend. Back in her country, 

Marilu tried to work hard to make a home with the thought of eventually bringing Juan to 

live with her even though he is a U.S. citizen. Then, Marilu's brother began having 

trouble with gang members. The gang members began to threaten Marilu and her entire 

family. Fearing for her life, Marilu fled to the U. S. She was transferred to BTC where she 

expressed a fear of return to her country. Marilu underwent a Reasonable Fear interview 
120 

Mr. GOODLATTE. And the Chair is now pleased to recognize the 

gentleman from Illinois, Mr. Gutierrez, for 5 minutes. 

Mr. GUTIERREZ. Thank you, Mr. Chairman. 

Good to have you, Director Morton. 

I just want to follow up on these deportations. So how many people were deported in the last calendar year? 

Mr. MORTON. About 409,000 people. 

Mr. GUTIERREZ. Can you tell us about the last 4 years, deportations during the last 4 years, just general numbers? 

Mr. MORTON. General numbers, just a little bit shy of 400,000 on 

average every year. 

Mr. GUTIERREZ. On average each year. 

And how is that in relationship to the previous 4 years in terms 

of actual number of deportations? 

Mr. MORTON. Significantly increased. 

Mr. GUTIERREZ. Significantly increased. So since you got the job 

4 years ago, deportations have significantly increased, and we can 

demonstrate that through actual numbers. 

Mr. MORTON. Yes, particularly for criminal offenders where we 

have focused most of our effort. 

Mr. GUTIERREZ. And what is the reason you believe that you 

have been able, in spite of the cost for many of us, to be able to 

achieve that significant increase in deportations? 

Mr. MORTON. The Congress of the United States provides us resources to enforce the law. My job as the head of the Agency is to 

see that those resources are well spent, and Congress has provided 

us resources that—— 

Mr. GUTIERREZ. Let me ask you something, Mr. Morton. 

Mr. MORTON [continuing]. We can remove about 400,000 people 

a year. 

Mr. GUTIERREZ. Sorry to interrupt you. 

So when you started at this job, how many local police departments, governmental agencies had a relationship under Secure 

Communities and the Federal Government? 

Mr. MORTON. When I first started, very few. 

Mr. GUTIERREZ. How many today? 

Mr. MORTON. Today Secure Communities is in every jurisdiction 

of the United States. 

Mr. GUTIERREZ. In every jurisdiction of the United States. 

So during the last 4 years, you have expanded heretofore an almost unknown program, which really is to gather, would you not 

agree, many of the people that you subsequently put in deportation 

proceedings? 

Mr. MORTON. The Secure Communities program? Yes. And the 

criminal justice system now allows us a window to that system in 

a way that was never possible before. 

Mr. GUTIERREZ. So we give you money. So you have to have 

34,000. Do you feel you have to have 34,000 people in custody every 

night in a bed? Do you feel you have to have that number? 

Mr. MORTON. We have to maintain, on average, 34,000 beds from 

a budget perspective, and obviously we are not going to have empty 

beds. Some beds we actually put more than one person—— 

Mr. GUTIERREZ. But you relayed to us that 40 to 45 percent of 

everybody currently in some kind of proceeding is not, in the defini-
121 

tion of the Federal Government, a criminal. Is that correct? You 

gave us a number—and I have tried to calculate—that about 40 to 

45 percent—there were 350,000 people approximately where? Define where the 350,000 people are. 

Mr. MORTON. In removal proceedings. 

Mr. GUTIERREZ. In removal proceedings. 

And you also suggested that about 40 percent of them had committed no criminal violation. Is that correct? 

Mr. MORTON. That is right. I think the number is probably higher than that even. 

Mr. GUTIERREZ. Very good. 

But in spite of the fact that they have not committed any criminal violation, we still have astonishingly high, record-breaking 

numbers of deportations. 

Mr. MORTON. The Congress of the United States—— 

Mr. GUTIERREZ. And Secure Communities has gone from a few 

parts of the United States to everywhere in the United States of 

America. 

Mr. MORTON. That is right. 

Mr. GUTIERREZ. I think to me that demonstrates the need for 

comprehensive immigration reform. The separation of families and 

the destruction of families. The fact is you will deport 1,400 people 

today. You will deport 1,400 people tomorrow and the next day and 

the next day and the next day until we do comprehensive immigration reform. 250 to 300 American citizen children are going to be 

left today because of your actions and those of your department 

without a mom or a dad. The fact is there are thousands of children in foster care and in proceedings of termination of their parental rights. There are 4 million American citizen children who— 

I have to tell you, Mr. Morton—many times you do not take into 

consideration as you deport their parents from the United States. 

As a matter of fact, everybody likes to talk about the President’s 

order on deferred action, something that I praise and was happy 

to hear about. But the fact is, is it not true, that you will still deport the parents of those that have gained deferred action? 

Mr. MORTON. Deferred action covers the children. 

Mr. GUTIERREZ. But not their parents. 

Mr. MORTON. It does not cover their parent. 

Mr. GUTIERREZ. So we have an executive order that covers the 

children, but does not cover the parent. Again, we cover the children but not the parents and the corrosive effect that this has. 

I will just end with this because the Chairman is so good, and 

I am going to try to stay right on the number. And that is just to 

say, look, you should have released those 70 percent of those people 

a long time ago, according to your own statements that you issued 

in the summer of 2011 on prosecutorial discretion. I hope you will 

use more prosecutorial discretion not less prosecutorial discretion 

so as this Congress finally gets to the work of comprehensive immigration reform we will have fewer families that we need to heal. 

Thank you so much, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair recognizes the gentleman from Texas, Mr. Gohmert, 

for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 
122 

And I am grateful to the witness for being here even though I 

am looking at you through the reporter there. Thank you. 

I just got a message from my friend, the Governor of Texas, Rick 

Perry, indicating that they sort of feel like it would be a good idea 

that if you are going to release previously convicted criminals, people who are at a high risk for repeat offenses, and that would include multiple DWI’s, that they would really like to know that you 

are about to release those people in their State so they can give 

their law enforcement a heads up. 

Playing football back in high school as a quarterback, the linemen had sometimes what was known as a lookout block. If they 

screwed up so bad a guy got by them, they would at least have the 

decency to turn around and yell ‘‘look out.’’ That was a lookout 

block. They did not get their lookout. They did not get the block. 

They did not get the lookout in Texas. 

Are there some requirements that you notify the State and local 

authorities or State or local authorities when you allow criminals 

and suspected criminals to go free from detention? 

Mr. MORTON. There are no blanket notification requirements. 

Mr. GOHMERT. So unless we put it in the law, you do not even 

give a lookout, here come these folks. 

Mr. MORTON. Generally speaking, the notification that we will 

give is, where we can, through the victim notification system. Remember, we are not part of the—— 

Mr. GOHMERT. The victim notification, but not necessarily to the 

local law enforcement or the Governor’s office. 

Mr. MORTON. That is correct. 

Mr. GOHMERT. Because I can assure you if you notify the Governor’s office, they are going to let the local law enforcement know. 

That would be a good place to start, but it sounds like we are going 

to need to put that in the law. 

Well, I tell you I was staggered to hear my friend, Zoe Lofgren, 

from California talk about the greatest number of convictions, of 

Federal convictions, that this Administration has are for Federal, 

which is a felony, reentry after deportation. I was staggered to hear 

that. And, Mr. Morton, if there is anything that comes out of this 

hearing that shocks the conscience, it is that the number one biggest problem in this Administration of a Federal felony nature is 

the reentry by deported illegal immigrants after they have been deported. 

Now, as a district judge in Texas, it was an ongoing problem. I 

had one guy with nine DWI’s, never would be deported, was constantly reported to the Federal authorities. This is when Bill Clinton was President. And finally he hit somebody again and he came 

before my court because that bumped it up to being a felony. So 

I understand it. 

And as I have asked before, when people testify, yes, we took 

him to the border and released him, I often want to know did you 

stick around long enough to watch them come across the border, 

or did you immediately drive away after you had dropped him off. 

This is a huge problem. 

And I am just curious. With each one of these Federal felony convictions, it means we are paying for a prosecutor. We are paying 

for law enforcement to get these people and then a prosecutor. We 
123 

are paying for a defense attorney for them. We are paying for the 

offices for the prosecutor, the offices for the law enforcement, the 

offices for the judges, the offices for the appellate courts. And the 

number one conviction is for Federal felony reentry after they have 

been deported. 

When I start thinking about that fact, it becomes pretty clear the 

best thing this Administration could do for this country is secure 

the border so they do not have to keep re-catching the people that 

have already been deported. To heck with how much a wall costs 

or drone coverage, whatever it takes, your Administration—and 

this message should go up to the President. This Administration 

should do everything they can to secure the border so that the 

number one source of convictions is no longer felony reentry after 

you have deported people. 

And then you think about the money that would be saved by 

those who do not have their house burglarized by criminals that 

have been deported and have come back in, people who have not 

been raped or cars that are not damaged in traffic accidents by 

criminals that have been deported. But we do not secure our borders so they come right back in. 

So if any message comes out of this, I would implore you, please 

send a message to this Administration. You want to save money, 

Mr. President? You want to save money, Secretary Napolitano? Secure the border and we will have all the savings they will ever 

need. And I appreciate your doing that, if you will. Would you pass 

a message on such as that? 

Mr. MORTON. I would be happy to note your statements here 

today. 

Mr. GOODLATTE. The Chair thanks the gentleman from Texas 

and recognizes the gentlewoman from California, Ms. Bass, for 5 

minutes. 

Ms. BASS. Thank you very much, Mr. Chair. 

I wanted to follow actually my colleague, Mr. Guiterrez, some of 

the questions and comments he was raising. I actually come from 

an area in Los Angeles that is very, very concerned about Secure 

Communities and the number of detentions that were non-criminal. 

So maybe you could respond a little bit to that in terms of why people were detained if there were not criminal charges. 

And in addition, I wanted to ask you about the children. He 

made reference to the children whose parents are deported and the 

ones that are put in the foster care system. Specifically, I wanted 

to know what happens to them, but I also wanted to know a name 

of a person in your office that I can have ongoing communication 

about the children who wind up in foster care. 

Mr. MORTON. So we will follow up with you after the hearing for 

a name. We are actually working on a policy trying to address with 

Health and Human Services this sort of issue of what do you do 

with U.S. citizen children when you remove the parents and they 

have to go into—if they are left here, they go into the child welfare 

system. 

With regard to Secure Communities, we have implemented Secure Communities nationwide, in every jurisdiction. There are frequent criticisms and allegations that we are using it to identify a 

lot of non-criminal offenders. That I do not think is entirely fair. 
124 

It is a very sensible program. We are trying to focus our resources 

on the criminal justice system. 

Occasionally someone will be charged with a criminal offense and 

they have also been deported from the country before or they also 

have an outstanding final order. Technically that person is a noncriminal offender because they have yet to be convicted. But I do 

not think it is reasonable to expect the Agency to ignore the fact 

that they are in the country here unlawfully, or they have an outstanding final order that they ignored. And in those circumstances, 

when we identify them through Secure Communities, we will place 

a detainer on those individuals and we will seek to remove them 

from the country. 

Ms. BASS. In Los Angeles, what was happening was raids, you 

know, raids of workplaces. And I do not know how a decision is 

made about that. 

Mr. MORTON. Well, I am not aware of raids, as you would describe them, in the last 4 years. The Secretary instituted a new policy for worksite enforcement that has us focused first and foremost 

on criminal violations by the employers, heightened audits, and an 

effort to work with the business community to encourage voluntary 

use of E-verify, which we have done. Last year we had over 3,000 

I-9 audits, which was the highest level in the Agency’s history. And 

we have generally not pursued the very large-scale administrative 

raids you saw previously. 

Ms. BASS. You know, I want to give you an example. I was in 

Miami, Florida with the Foster Youth Caucus, and we were visiting 

a residential facility for foster youth. And I am from Los Angeles. 

And on that day, they were getting four kids from Los Angeles who 

were being sent to Miami to be in residential care. And I guess my 

concern is that for those parents that do wind up deported, their 

children could get lost in our system when they could have relatives who are here legally. 

Mr. MORTON. We do everything we can to ensure that the children, if they are not going to go home with the parents, are in an 

appropriate custodial situation. This is a very challenging area. 

Most of the people that we are talking about, most of the parents, 

are criminal offenders. Some of the damage has been done long before ICE takes custody of them and the person has been incarcerated for quite some time and a challenging family relationship now 

exists. And obviously, simply having a child is not a basis for staying in the country lawfully. 

Ms. BASS. Oh, sure. 

Mr. MORTON. You have committed an offense. 

Ms. BASS. Yes, and I am definitely referring to the ones that 

were not. 

But if I could follow up, if I could have my staff follow up with 

yours to get someone who is looking at that policy with DHS, I 

would definitely like to be included in that. 

Mr. MORTON. Yes, ma’am. We will do so. 

Ms. BASS. Thank you. 

Mr. GOODLATTE. I thank the gentlewoman. 

The Chair recognizes the gentleman from Pennsylvania, Mr. 

Marino, for 5 minutes. 

Mr. MARINO. Thank you, Chairman. 
125 

Director, welcome. 

Mr. MORTON. Thank you. 

Mr. MARINO. Director, you hit the news quite a bit over the last 

couple of weeks. And it has been reported that you stated that 

there would be 2,228 illegal immigrants from local jails that would 

be released for various reasons. I think you followed up saying 

there may be more released as well. 

My question to you is—you know, that was accurate, and I am 

sure you were responding to precise figures. But do you not think 

you should have followed up by explaining to the American people 

we do this on a regular basis and we do release individuals, thousands of them, over several months given the fact that the way it 

was presented, either you were directed to or you did a little 

grandstanding on let’s make this sound as painful as ever per the 

sequestration? Now, why would you not follow up and explain to 

the American people we do this on a regular basis? 

Mr. MORTON. As I have said before, I do regret the timing in notification. We should have, as an Agency, done a better job of communicating what we were doing and why we were doing it, both 

in terms of communications to our oversight committees and generally. 

Mr. MARINO. And I do not hold you totally responsible for that. 

I know you said that you did not have any communications, but I 

reached down into my heart and then I find it hard to believe that 

some kind of a wink and a nod was not said across the board that 

let’s make this sound as painful as possible, whether it is in your 

department, the Justice Department, or Homeland Security or 

somewhere else. I do have a problem with that. 

Also, I received a letter. I am from Pennsylvania, northeast 

Pennsylvania. I have 15 counties. One of my counties is Pike County, and they house illegal immigrants. They do a great job. They 

have been recognized for this. And as the letter states—it is dated 

March 1, 2013 from the commissioners of Pike County. And I am 

just going to very carefully read two sentences. 

As you may know, on behalf of the Department of Homeland Security, Immigration and Customs Enforcement, immigration detainees have been housed in Pike County correctional facility since 

1996. And the fact that in stark contrast, these numbers—and they 

go through to tell the numbers of how many they house and how 

many they are housing. Detainees housed in Pike County has been 

steadily declining since before the beginning of this year. 

And you said as high as $164 per day to keep an illegal in prison 

in some situations. In Pike County, it costs $82.50 a day. They do 

a great job and they really have the cost down. Why not take advantage, more advantage of facilities like this and particularly in 

Pike County who built a whole new facility just to house these individuals? 

Recently the number of detainees has decreased, as I stated to 

you. But can you account for the decrease since before the beginning of the year of detainees? 

Mr. MORTON. Why do we not follow up with you on Pike County? 

Mr. MARINO. I would appreciate that. 

Mr. MORTON. We run over 250 different facilities. 
126 

Mr. MARINO. And I know that. Listen, when someone is asking 

me do I know everything that is going on in Congress, I have to 

say, no, I do not know everything that is going on in Congress. And 

as one prosecutor to another, I know your responsibilities are great. 

Here is another question I have for you if I have time. Have you 

approached the United States attorneys in the respective districts 

and informed them that these people were going to be released, or 

were you told not to inform them? Did you have any communications with informing them or not informing them? Because I would 

find it hard to believe that you did not get some push back from 

U.S. attorneys on this. 

Mr. MORTON. No, we have not notified the United States attorneys’ offices of the releases, non-criminal or criminal. But remember, all of these people have been convicted and have served their 

time. We are talking about detention solely for removal purposes. 

We are not a penal institution. 

Mr. MARINO. I understand that, but do you not think it would 

hurt morale? I was a former U.S. attorney. I know what my staff 

went through. I know how hard they worked. I know how they followed these cases through. And then just to simply release these 

individuals, it has got to be a morale-buster. I know I would have 

pushed back had I known about it, if I were the U.S. attorney. So 

you are saying there was no communication there? 

Mr. MORTON. No. All I can say is I think from the U.S. attorneys’ 

community perspective, we are prosecuting a record number of 

cases with them. We are removing a record number of—— 

Mr. MARINO. Okay, I understand that, sir. My time is limited. 

Have you ever received any notification from up the chain that 

we do not want you picking up any more illegals in this country? 

Mr. MORTON. Let me be clear on this. These releases are solely 

a determination by the Agency—— 

Mr. MARINO. I understand that. I clearly understand that. But 

the question was have you received any direction from up the chain 

not to detain any more illegal aliens in this country. 

Mr. MORTON. No. 

Mr. MARINO. I yield back. Thank you, sir. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair recognizes the gentleman from Louisiana, Mr. Richmond, for 5 minutes. 

Mr. RICHMOND. Thank you, Mr. Chairman, and thank you to the 

witness. 

As I sit here and ponder my questions and I look at the title, the 

‘‘Release of Criminal Detainees by U.S. Immigration and Customs 

Enforcement: Policy or Politics?’’, it begs the question whether the 

hearing itself is policy or politics because I have yet to hear someone ask if we are so worried about the releases, how much do you 

need so you do not have to release people. And you made these releases based on sequester. 

If we were asking and we wanted to know what do you need as 

we do a CR and other things to keep Government going, what do 

you need so that you do not have to release anybody. 

Mr. MORTON. I get asked this question all of the time, and it gets 

back to a recognition that the Agency is asked to do far more than 

Congress appropriates or could rationally appropriate to the Agen-
127 

cy. We are in a situation where there are 11 million people, on average, who are here unlawfully, and the Agency has resources to 

remove about 400,000 a year, which is less than 4 percent. And it 

is why, at the end of the day, I think bipartisan efforts to come to 

some level of comprehensive immigration reform is the thoughtful 

way out. The Agency is never going to be able to detain and remove 

everybody as a matter of budget, nor does it make sense as a matter of policy. 

Mr. RICHMOND. And as the Agency head, how do you plan and 

budget for a Government that is operating 60 and 80 days at a 

time, almost like a drunk frat house planning the next party? 

Mr. MORTON. It is very difficult. Listen, I am the head of the 

Agency. I accept all of the criticism of the Agency on its behalf. But 

I will say we could have done a better job of notifying the Committees and explaining what we were doing. Let’s be frank, however, 

we are dealing with a situation in which we had a 6-month CR, a 

sequestration imposed on top of that, and as of right now, I do not 

know what my budget will be for the next 6 months of the year. 

And the career men and women are doing the best job they can to 

use the funds that we have been given wisely in an awfully unique 

budget environment. 

Mr. RICHMOND. And I am glad you brought up the fact that you 

are dealing with the CR’s because it has been suggested that this 

is on you. But let’s just take the time since I have been here the 

last 3 years. Was it your idea to pass a 14-day continuing resolution? Was it your idea to pass a 21-day continuing resolution or a 

7-day or a 168-day or a 4-day, a 45-day, a 28-day, a 1-day continuing resolution and a 6-day? How do you adequately plan and 

run the Government or a branch of Government with CR’s that go 

for that short amount of time? How do you adequately budget for 

that? 

Mr. MORTON. It is very difficult. We err on the side of being conservative, as we have here, to make sure we are not deficient at 

the end of any given continuing resolution. It is difficult. We are 

a very large operation. We are taking in over 400,000 people a 

year, and it has to go on for the full year. And when you are in 

an environment where you do not know what your budget is going 

to be, when the various marks in the House or the Senate are different, when you are looking at sequestration, it is a challenge. 

And you do your best under the circumstances to come up with the 

right answer. 

Mr. RICHMOND. As you went through the releases and as you sit 

here today, do you think that your department went through the 

necessary due diligence to make sure that the people who were released posed the least threat to our citizens and our constituents? 

Mr. MORTON. The instructions to the field were clear. These decisions were made by career professionals in the field. So we did do 

the necessary due diligence in the sense of giving out good instructions. But we are going to follow through. This is not something 

that was done one day. We will continue to review these releases. 

If we made a mistake, we will take the person back into custody. 

I do not claim perfection for the Agency in each and every action 

it makes over a year. And we have made releases on the best judgments we could, on the record that was available, and if we get it 
128 

wrong upon review, we will take the person back into custody. We 

will put them on a different level of detention. We are doing that 

now. 

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

Mr. GOODLATTE. I thank the gentleman. 

And the Chair recognizes the gentleman from Idaho, Mr. Labrador, for 5 minutes. 

Mr. LABRADOR. Thank you, Director Morton. I actually had the 

privilege of working with ICE for 15 years as an immigration lawyer. We were on the other side, but I know what a difficult job you 

have and what a difficult job the men and women in your office 

have. 

I do have a question. Was it your idea—just to follow up on the 

questions. Was it your idea to not pass a budget for 4 years? 

Mr. MORTON. Obviously, budget decisions rest with the Congress 

of the United States. 

Mr. LABRADOR. I just want to remind the people on the other side 

that it has not been this house who has not passed a budget, that 

it was the Senate that has not passed a budget in 4 years. But that 

is neither here nor there. 

The gentleman from Pennsylvania asked you a line of questions. 

And the question today, was it policy or was it politics—can you 

at least understand why this question is being raised? I think you 

have acknowledged a little bit that you made some mistakes. Can 

you understand why this question is being raised? 

Mr. MORTON. I have acknowledged that our notification of what 

we were doing with our Committees of oversight could have been 

better, and I take full responsibility for that as the Agency head. 

The buck stops with me. 

Mr. LABRADOR. So you said the decisions were made by career officers, but you just told us that you had instructions to the field. 

Why were those instructions sent to the field? 

Mr. MORTON. So the underlying decisions were made by career 

officers, both in the budget office and in ERO. Instructions were 

given to the field on how to carry out the releases, make sure they 

are non-mandatory—— 

Mr. LABRADOR. So these were not field officers. These were career officers in the—— 

Mr. MORTON. At headquarters. 

Mr. LABRADOR. At headquarters in Washington. I just want to 

make that clear that this was not field officers making decisions. 

They were getting instructions from your office. Is that correct? 

Okay. 

Now, your budget in 2009 was $4.9 billion. Your budget in 

2010—it was $5.3 billion. Your budget in 2011 was $5.4 billion, and 

your budget in 2012 was $5.5 billion. So in the last 4 years, your 

budget has actually been raised by at least 10 percent. Is that correct? 

Mr. MORTON. That is correct. 

Mr. LABRADOR. So you are coming here and telling us that because you have to cut 5 percent of your budget, you cannot do the 

job that you were doing in 2009, 2010. Is that what you are telling 

us? 
129 

Mr. MORTON. No. I am telling you that we are operating at an 

all-time high both in terms of detention and the removals that we 

have—— 

Mr. LABRADOR. But you just testified that in 2009 and 2010, you 

were detaining about—you were deporting about 400,000 a year. 

You were taking credit, which I think you should, for the high 

numbers of deportation, and you had a budget that was actually 

less than what your sequestration budget is going to be. 

Mr. MORTON. No. Our removals last year were the highest ever. 

Mr. LABRADOR. Yes, but in the last 4 years, you have averaged 

400,000 deportations, removals. Is that not correct? 

Mr. MORTON. I did. 

Mr. LABRADOR. And you did it with a budget that was bigger— 

actually smaller than the budget we are talking about right now 

with the 5 percent cut. 

Mr. MORTON. I gave you an average for the year—for the 4 years. 

If I were to give you each year, it would be substantially less. 

Mr. LABRADOR. So again, in 2009, you had 4.9 which is substantially less than what you have right now even with sequestration. 

In 2010, you had 5.3, which is about what you are going to have, 

and you were able to do your job. 

Now, as a practitioner, I had an opportunity to work with people 

in detention quite a bit. I had thousands and thousands of clients. 

And when I look at these numbers, 2,228 were released, and you 

sent out this paper that says detention releases solely for budget 

reasons. But you are telling me that 1,599 of them had no criminal 

convictions. Is that correct? 

Mr. MORTON. That is correct. 

Mr. LABRADOR. So was that not something that you were going 

to do anyway, release the majority of these people regardless of 

your budget constraints? 

Mr. MORTON. No. 

Mr. LABRADOR. They were in removal proceedings. Correct? 

Mr. MORTON. They are in removal proceedings. We do detain 

non-criminal immigrants who are, nonetheless, removable from the 

United States. 

Mr. LABRADOR. And if they ask for a release, you make a determination, regardless of what the budget is, whether they should be 

released or not. 

Mr. MORTON. An immigration judge makes that decision. 

Mr. LABRADOR. But your field officers have the authority to release these aliens. Correct? 

Mr. MORTON. That is correct. We have some discretionary authority ourselves, and then our determinations are reviewed by immigration judges. There are many instances in which we seek to 

detain somebody and an immigration judge, as you know, disagrees 

with us and orders us to release the person. And there are also 

cases that I referred to earlier where, as a matter of court ruling, 

we must release people, the Zadvydas case in particular. 

I will just tell you, in addition to these 2,228 budget releases, we 

released about 150 individuals for special circumstances. The overwhelmingly largest group were people who were unremovable, Vietnamese, Cubans, people we could not get travel documents—— 
130 

Mr. LABRADOR. My concern—I think Mr. Marino said it correctly. 

The way you went about this policy actually scared America instead of making America feel safe because I know you release people every single day, and it seems odd to me that since your single 

largest appropriation is for custody and detention, that you did not 

request reprogramming. And if detention is the single largest appropriation, then it follows that it is the highest priority of Congress. And if it is the highest priority of Congress and you know 

this, then why would you not ask for us to do something about this 

for reprogramming instead of trying to scare the American people 

and saying that because of sequestration, we have to release these 

people that you have the authority to release and have done in the 

past. 

Mr. MORTON. Obviously, I do not agree that we were trying to 

scare America. We were trying to maintain our budget. And again, 

we were at the highest level of detention we have ever had and the 

highest level of removals we have ever had. We release people all 

of the time pursuant to statute, and we got to make good judgments with the resources we have on how we go about doing that. 

And that is what we are doing every day. We are going to continue 

to do it for the rest of the year. We will try to maintain whatever 

detention levels Congress provides. And it is not so simple when 

the largest appropriation we have is custody operations, and the 

next largest is criminal investigations. 

Mr. GOODLATTE. The time of the gentleman has expired. 

Director Morton, we still have four more Members who want to 

ask questions. So we have a vote on. We will recess. The gentleman 

from—— 

Mr. MARINO. Mr. Chairman, a point of order. 

Mr. GOODLATTE. Do you have a unanimous consent request? 

Mr. MARINO. Could I have this letter entered as part of the 

record? 

Mr. GOODLATTE. Can you identify it for the record? 

Mr. MARINO. Yes. It is the Pike County Commissioners, Pike 

County, Pennsylvania. The commissioners sent me a letter on some 

of my questioning pursuant to why Pike County illegal immigrant 

levels are down. 

Mr. GOODLATTE. Okay, thank you. And without objection, that 

will be made a part of the record. 

[The information referred to follows:] 
131 

PIKE COUNTY COMMISSIONERS 

PU'E COUNT'Y AD""NIST""'"ON IIUIL!)''''; &<I. e "OAD STilE£,< 

"'UOOIO. "" .aU7 

_oQO. } _."~.".. .......... __ , ... o~ . ... 

-.. ....... ~ .. '" 

~ .... TomMarino 

410Clnnon 1l0llW Office BId&-

Wubin&ton D.c.. 20SIS 

C""iJ'USIMD Marino, 

Much l. 201l 

..... _ .... ..... ¢I. .. ,,'-

-"~ .. " .. ,,,,,, .. ............. o.>cO"'. 

Tho: Pike CoWlty Co=';olll.l fllci liry I>as indocd met or ~ceedcd !he .. established 

de!~ntion SIaIIdardlI, e'm)' rear linee 1996. The Pike COWlt)' Cotttetional F..,ility hal 

f'CJ'IdltlouslY ...eel"",, • ·Superior" all ..... wl or lhe .... utJ ,undards oompIiance. 

Se."tnlI times the fJcilily, OM of hundruls of (..,ililicr 

"'as in Iht. c.owury Kirieve this . . In -*, 

We OOft!l:nd tbat il urlopcallO- mAIntain. relationship which Iw I)9cnJorjlCd.ln'CI" many 

~ aIlCI has bea!.IJ!IIIUa!lY bcIIell~ial Q.\the:£l!dcraJ JO"~lIn!i:n1, I.c.~ ,q.)li!~ ana W CiIiz.eMorpa.~ COUDIY,"' Wo" rlO.nlid~l,!-thc inlRll.ional~ ~ ofp~ 

.fhill\. 1hc',Piu CowlIy, {lomc6ocW .• facllit)\j"i1iJe si&rlifi .... • .. (.Ial~ ~iOAll ir'e bej"ll: 

alI;lIlIillOd eUtwtu:re.tn sUb .laqdard.oondjtionsor.~Ii~. Ow ~cn;&~ lias 

JpOl;~n 10 I.C.G: Philadelphia F~d., OIT __ Dircdor Thoow Ik<:ker, ond bas been advl5Cd IbM 
132 

although our detainee population has diminished steadily and significantly, and there is no plan 

of action, or intention to bolster our detainee population, which may be decreased even fmlher. 

In dosing, we wish to enSllfe that you are aware of this fluid situation which has created 

an undeniable detrimental economic impact in Pike County. My contention is that 

comprehensive adherence to federal detention standards should equate to the Pike County 

Correctional Facility being utilized to house its design capacity of I.C.E. detainees. In light of 

impending sequestration, and the dire fiscal and eeonomic crisis presently being portrayed in our 

country, should there not be a premium placed upon a facility in yoW' Congressional District 

which exceeds federal detention standards, provides the superlative conditions of confinement 

being sought, and does so at a far lower cost per day than many other correctional facilities in 

our country? 

"Vhy would as much as one hundred sixty four dollars ($\64.00) per day be spent to 

house a detainee in a substandard facility, when bed space is abundantly available in Pike County 

at a cost of eighty two dollars and fifty cents ($82.50) per day? Clearly an option to house 

criminal detainees appropriately while slashing the cost of detention is avaiJable, yet an 

unprecedented decision wa;; made to release hundreds of criminal illegal aliens into our 

communities which has undeniably endangered American citizens. We contend that failing to 

utilize the Pike County Correctional Facility to its fullest potential is a disserviee to taxpayers on 

both a local and national level. We humbly present this argument to you for yoW' examination, 

and for tbe benefit ofthe citizens in your district and the citizens of the United States. 

Attachment 

cc: 

Congressman John Boelmer (wiatt.) 

Congressman Lou Barletta (wiatt.) 

Senator Patrick 1. Toomey (wiatt.) 

Senator Robert P. Casey (wiatt.) 

Senator Usa Baker (wIatt.) 

Governor Tom Corbett (wIatt.) 

Representative Michael Peifer (wIatt.) 

Representative Rosemary Brown (wiatt.) 

Respectfully, 

£~e~W~~ 'C.h"rd A. Caridi. Chairman 

&.utJ/&-i ~hew M. Osterberg, ~Chai!1l1;Ul 

~D Ct'u-2(~y.rV Karl A. Wagner Jr., Co~isskmer 
133 

Mr. GOODLATTE. The Committee will stand in recess until immediately after these votes. 

[Recess.] 

Mr. GOODLATTE. The Committee will reconvene and the Chair 

recognizes the gentleman from New York, Mr. Jeffries, for 5 minutes. 

Mr. JEFFRIES. Thank you very much, Mr. Chair. 

You know, I am a new Member here, and I think I am generally 

a pretty optimistic type of person. But oftentimes, many of the 

themes that we have seen over the last several months within this 
134 

institution—and I do not doubt the sincerity of several of our 

friends on the other side of the aisle. But many of the themes that 

we see that have been articulated suggest that the sky is falling, 

and so we are in the midst right now of debating what many of us 

view as a very draconian budget, that we are told if it does not get 

passed, the need for such austerity measures are designed to prevent the great United States of America from becoming Greece or 

Spain and perhaps something worse. The sky is falling. 

We also on the Subcommittee had a hearing that I believe was 

entitled ‘‘The Obama Administration’s Regulatory War on the 

Economy,’’ very ominous because the sky apparently is falling, notwithstanding the fact that this Administration has created about 6 

million private sector jobs. 

And today there is a theme advanced by some—again, I am not 

questioning the good faith of any Member’s views, but the theme 

is that criminals have been unleashed on the American public. And 

the question that has been posed is, is this policy or is this politics? 

Now, I would note parenthetically that I believe in my reading 

of the Twenty-Second Amendment, Barack Obama is constitutionally prohibited from even running for office again because he 

was elected and re-elected. I am not sure how politics could even 

make their way into this discussion from the electoral context. 

But putting that aside, the issue of whether criminals have recklessly been unleashed on the American public is an interesting one. 

And I gather about 2,228 people are at issue in terms of the release 

from detention. Is that correct, Mr. Director? 

Mr. MORTON. That is correct, sir. 

Mr. JEFFRIES. And that release took place between February 9 

and March 1. Is that correct? 

Mr. MORTON. That is correct. 

Mr. JEFFRIES. And I believe you testified earlier today that there 

is no evidence, as far as you know, that any single one of those individuals, more than 2,000, who was released has engaged in criminal activity subsequent to that release. Is that correct? 

Mr. MORTON. Not that I am aware of. That is correct. 

Mr. JEFFRIES. Now, of course, that is not to say that someone 

may not engage in some form of destructive behavior at some point. 

These things are very difficult to predict scientifically. I am certain 

that your Agency—and under your leadership, you have attempted 

to do it to the best of your ability, as prosecutors and judges and 

people all throughout the American criminal justice system attempt to do. 

But if I just might for a moment go through some of the releases 

that took place at the field offices. It is my understanding that 

about 342 detainees were released from the Phoenix field office. Is 

that correct? 

Mr. MORTON. Yes. Arizona had 1 level 1, 30 level 2s, 91 level 3s, 

and 122 non-criminal. 

Mr. JEFFRIES. Thank you. I do not know what is going on with 

this microphone. 

Any evidence that a crime wave was unleashed on the people of 

Phoenix, Arizona? 
135 

Mr. MORTON. No. As I said earlier, we only have one level 1 offender on release in Arizona, and that individual is 68 years old 

and a lawful permanent resident for 44 years. 

Mr. JEFFRIES. Okay. There is no documented evidence that the 

people of Phoenix, Arizona have been ravaged subsequent to the release of these individuals, is there? 

Mr. MORTON. There is no indication of a crime wave. We are, obviously, going to pay attention to every single case, and as I said, 

if a case needs to have a different outcome, we will make that outcome. 

Mr. JEFFRIES. 341 people were released from the San Antonio 

area. Any evidence that a crime wave has taken place subsequent 

to that release? 

Mr. MORTON. Not that I am aware of. We had no level 1 offenders released in the State of Texas at all. 

Mr. JEFFRIES. Okay. San Antonio was number 2. 

Miami, number 4, 225 folks. Any evidence of a crime wave unleashed on the people of Miami? 

Mr. MORTON. So far, we have had no evidence of serious misconduct. 

Mr. JEFFRIES. And lastly, Chicago I believe was number 7 on the 

list. And I would note, interestingly enough, that—and I would like 

to ask unanimous consent, Mr. Chair, that an article in the Washington Post stated ‘‘Chicago’s murder rate is finally falling. Can 

that keep up?’’ That that be entered into record. 

Mr. GOODLATTE. Without objection, so ordered. 

[The information referred to follows:] 
136 

Cbicago's murder rate is ftl1:'1ll~ falling. Can tint keep up? I Wonkblog hltp:ll\~"" .\\ asliinglonposLeom'blogs/wonkblogl" p/20 13/03/06/ellicag. 

Ion 

Chicago's murder rate is finally falling. 

Can that keep up? 

By Dylan Matthews, Updated: March 6,2013 

Homicide rates fall across the country for the past two decades, but in Chicago, that trend has 

reversed in the past yeaLln 2012, the city saw 59Jd19n:~j~L~t~_~, a 16 percent increase over 

20 II. In January 2013, there 'y~~eI~ 43 homicides, which, if repeated every other month, would 

have led to 516 homicides over the course of the year-even more than 2012. But thankfully, 

that pace didn't keep up. February saw a huge d~, vvith only 14 homicides reported, the 

lowest monthly total since 1957 

The Chicago Police Department claims that was achieved through -, saturation policing," in 

which the police department identifies high-crime areas and then focuses districts' energies 

on them. In February, the CPD identified 10 zones, which account for about 2 percent of 

Chicago's land area but 10 percent of its violent crimes, and 5QD! 200 officers on overtime 

patrols in those zones. The approach was a modified version of a policy that Mayor Rahm 

Emanuel and Commissioner Garry McCarthy had initially abandoned. IIpdt.Jle: this 

paragraph originally cited 600 officers on overtime patrol; i15' actllally 200 every night. We 

apologize for the errOl: 

Former Mayor Richard Daley and Commissioner Jody Weis used two groups, called the 

Mobile Strike Force (MSF) and Targeted Response Unit (TRU), that had city-wide 

jurisdiction and were sent in to saturate neighborhoods experiencing spikes in crime; Emanuel 

and McCarthy broke up those units and qjs.p_~rs~Q their cops to districts. Those groups were 

vvidely criticized as abusive to the communities they arrived in, even if they were seen as 

effective. The new groups have specific geographic areas, mth the hope being that they'll be 

more responsive to community interests than their predecessors 

Both '-saturation units" and the MSF/TRU approach of Daley can be thought of as a form of 

what criminologists call "hot spot policing." David Weisburd (George Mason I Hebrew 

University) and John Eck (University of Cincinnati) ,4cfine '-hot spot policing" as 

"demand[ing] that the police identify specific places in their jurisdictions where crime is 

concentrated and then focus resources at those locations." That seems like a pretty good 

description of what Emanuel and McCarthy are up to. 

So does it work? Weisburd and Eck identify five randomized controlled trials of hot-spot 

policing, all of which found positive effects. The Minnesota Hot Spots Patrol Experiment, 

conducted from June 1987 to June 1988, found that a hot spots strategy resulted in a 6-13 

percent reduction in total crime reports. The Kansas City Crack House Raids Experiment, 

undertaken from November 1991 to May 1992, fQlJQ-Ji an 8 percent net reduction in crime, 

though those results decayed as the strategy continued. A study in San Diego fmLIJQ that a 

kind of hot spots policing in which police raids are followed up with visits to landlords to 

make sure activity has not started up again results in a 60 percent reduction in crime, relative 

to having no follow-ups with landlords 

4/10/20]] 3:39 PM 
137 

Mr. JEFFRIES. And this article notes that in January of 2013, 

prior to the release of these people who, I guess in the view of 

some, threatened the well-being of the American public—there 

were 43 homicides, which is at the high end. February, interestingly enough, saw a huge drop. Only 14 homicides, the lowest 

monthly total since 1957. Now, I am not suggesting there is a correlation between that low total and the release of these individuals. 

But any evidence that the people of Chicago, number 7 on the list, 

have been forced to endure a massive crime wave as a result of the 

release of detainees? 
138 

Mr. MORTON. No, sir. 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. JEFFRIES. Thank you. 

Mr. GOODLATTE. The gentleman from North Carolina, Mr. Holding, is recognized for 5 minutes. 

Mr. HOLDING. Director Morton, it is good to see you. We worked 

together when we were both in the Department of Justice during 

the Bush administration, and I congratulate you on your promotion 

in the Obama administration. You always had a reputation for intelligence and professionalism and hard work during the times that 

I worked with you, and it is good to see you here today. 

I want to follow up a little bit on some questions that Mr. Marino 

asked you earlier. 

I assume all these detainees that were released are in various 

Federal districts. They either came from various Federal districts 

or were held in various Federal districts. And I understand it is 

your testimony that you did not consult with individual United 

States attorneys in those Federal districts when you were releasing 

detainees that would have come from them. Is that correct? 

Mr. MORTON. That is correct, although most of the detainees that 

we receive on the criminal side are coming from State and local 

custody, just the sheer volume. 

Mr. HOLDING. If I may interrupt—you know, the United States 

attorney is the chief Federal law enforcement in the district, and 

they would be your attorneys in each one of the Federal districts. 

Correct? You seek guidance from the United States attorney’s office? 

Mr. MORTON. On criminal prosecution matters? Of course. 

Mr. HOLDING. And on civil matters. 

Mr. MORTON. Yes, although they do not get involved in administrative removal matters. 

Mr. HOLDING. But they would. For instance, if you had an EEOC 

claim or some sort of claim within your Agency, it would be the 

United States attorney’s office who would be your lawyers and give 

you advice. 

Mr. MORTON. They would, indeed. And I am a strong supporter 

of the United States attorney’s office. 

Mr. HOLDING. During my tenure as a United States attorney, we 

worked very closely with ICE. All Federal law enforcement struggles with funding and struggles with covering their mission with 

the amount of dollars that they have to do it. And I think the motto 

throughout the law enforcement family is that we just have to do 

more with less. One of the ways we were always able to work well 

together is because the RAC’s and the SAC’s from ICE and other 

Federal agencies kept us well informed as to what was going on. 

I must say I find it incredibly unfortunate that you were not consulting with your individual United States attorneys when you 

made a decision of this nature. You know, the chief Federal law enforcement officer is charged with enforcing the laws within the district, the Federal laws. And for you to be releasing detainees is unfortunate. 

But moving on to budgetary questions, you know, I understand 

that with the exception of the custody operations, ICE was operating under the presidential budget, not the budget set by Congress 
139 

under the continuing resolution. And as a result, all of the other 

accounts in ICE carried a balance of $240 million for the year and 

$120 million for the past 6 months. And additionally, your CFO indicated that ICE carried forward $100 million to $120 million in 

user fee balances. 

Again, all Federal law enforcement is juggling and struggling to 

cover their core missions. 

So why didn’t ICE ever submit a reprogramming request to the 

appropriations rather than releasing detained illegal immigrants? 

Mr. MORTON. With regard to the appropriations outside of the 

custody operations, we were pursuing a conservative approach. The 

reason we were pursuing a conservative approach is because we did 

not know what our budget would be for the rest of the year, and 

those funds are what is going to allow us to operate at a substantial level in those accounts for the rest of the year. And I did not 

want to move monies out of the other accounts. And again, the biggest one we have is domestic investigations. I want to make sure 

we are doing everything we can on child pornographers and drug 

traffickers and alien smugglers possible. 

With regard to the user fee balance, we would have to get a reprogramming authority to use those funds. They are not available 

to us except for a very small amount, and there are restrictions on 

how they are used. And we are considering, as part of how we are 

going to deal with sequestration and whatever budget we get from 

Congress in the remaining 6 months of the year, using those user 

fee balances if we can get approval for them. 

I will just note I understand we are below 34,000 right now in 

terms of our detention levels, but on average we have maintained 

during the non-sequestration portion of this CR an average balance 

of 33,925. The Agency was right where it needed to be in terms of 

what Congress asked of it. 

Mr. HOLDING. Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

The gentleman from Florida, Mr. Garcia, is recognized for 5 minutes. 

Mr. GARCIA. How are you doing, Director? 

So I have got a few quick questions I want to ask you. 

Several times you have made reference to robbing Peter to pay 

Paul. In real terms, what does it mean? Give me some examples 

of the kind of investigations and programs that you might need to 

cut to maintain 34,000 beds and still comply with sequester? 

Mr. MORTON. Thank you. 

ICE does two things. We are part of the immigration enforcement system, the administrative system, along with CBP and CIS. 

And we are also the principal criminal investigator for the Department of Homeland Security. In fact, we are the second largest 

criminal investigative agency in the Government. We have more 

special agents than we do immigration enforcement officers. And 

that work is important work. We are out there every day investigating border crimes, transnational crimes, child exploitation, and 

that work is critical to homeland security and to national security. 

We are the second largest Federal contributor to the Joint Terrorism Task Forces in the country outside of the FBI itself. Important work, needs to go on, and in my view we should not take and 
140 

divert resources from domestic investigations to the detention 

budget if that would mean fewer child exploitation cases, fewer 

special agents on the streets, fewer drug trafficking cases. 

Mr. GARCIA. ICE has a mandate to maintain 34,000 detainees. 

How many individuals do you safely feel can be released under alternative detention? 

Mr. MORTON. Well, the alternative detention program has an 

enormous amount of promise, and there is a very high rate of appearance for the full-service model. So long-term I think it is something that Congress should pay a lot of attention to, and I think 

it could help with some of the budget challenges that the Committee and other Committees are wrestling with. 

The trick with alternatives to detention is to make sure that the 

case is heard quickly. The average cost of alternatives to detention 

on a full-service model is $7 a day compared to as much as $122 

a day for detention. However, if the case takes much, much longer 

to be heard and decided, eventually you lose the benefit of that 

much lower rate. 

Again, I think it is an important form. It was started back in 

2002 during the Bush administration. It makes sense, assuming we 

can get the cases on ATD heard quickly. 

Mr. GARCIA. Director, part of the—— 

Ms. LOFGREN. Mr. Chairman, there is something wrong with the 

microphones here. 

[Pause.] 

Mr. GARCIA. So there was made an allusion that for some reason 

you were doing this for political machinations. So I want to give 

an example because we had something happen because of budgetary reasons which have nothing to do with you. And there is a 

video we wanted to run. Do we have that? 

[Video shown.] 

Mr. GARCIA. Director, the reason I showed that is because I want 

the Members of this Committee to understand that you are doing 

a tough job under circumstances you did not plan for. We clearly 

did not expect to be here, and it is our responsibility as the Congress to find a way past this and to find agreement among ourselves. 

What you are doing you are doing, I would imagine, to make sure 

you can carry out the duties and responsibilities of your office. Correct? 

Mr. MORTON. That is exactly right. 

Mr. GARCIA. There was an allusion made you did this same work 

last time and deported 400,000. You were about at the same number the year before that and I think the year before that. Correct? 

Mr. MORTON. That is right. 

Mr. GARCIA. I would assume that the first 400,000 were a little 

bit easier than the second 400,000, than the third 400,000, I would 

imagine. 

Mr. MORTON. It is a challenge for us. We are trying to prioritize 

our efforts on those that make the most sense. 

Mr. GARCIA. Thank you. I will yield back the balance of my time. 

Mr. GOODLATTE. I thank the gentleman. 

And the Chair recognizes the gentleman from Ohio, Mr. Jordan, 

for 5 minutes. 
141 

Mr. JORDAN. Thank you, Mr. Chairman. 

Mr. Garcia, Director, said that there was no way you could plan 

for this and what was shown to us in the video. Why could you not 

plan for this? 

Mr. MORTON. The challenge this year has been that we have had 

a 6-month CR. As you know, on March 27, our funding is going to 

run out. I trust that the Congress of the United States—— 

Mr. JORDAN. I am talking about sequester. When did sequester 

become law? 

Mr. MORTON. The sequester took effect on March 1. 

Mr. JORDAN. No, but when was it passed? 

Mr. MORTON. The sequester has been around for quite some 

time, obviously. 

Mr. JORDAN. August 2, 2011, 20 months ago. So the statement 

that you could not plan for it—I mean, it seems to me you got 20 

months to plan for it. 

When did your Agency start planning for sequester? 

Mr. MORTON. Obviously, I think we, like most people, hoped that 

sequester would not become reality. 

Mr. JORDAN. You cannot plan on hopes. You got to decide. The 

law said August 2. It said on January 1, 2013, the sequester is 

going to happen. You got a 2-month reprieve on that. It took place 

March 1. When did you start planning for what everyone knew the 

law said? Or is it the practice at ICE not to plan and make decisions based on the law of the land and say, oh, we hope it is not 

going to happen? When did you start planning? 

Mr. MORTON. On the contrary. We are doing what the law requires in a very uncertain environment. 

Mr. JORDAN. No, that is not the question. When did the folks at 

ICE—when did you start planning for a law that was enacted on 

August of 2011? Did you start August 3, 2011? Did you start sometime in 2012? Did you start March 2, 2013? When did you start? 

Mr. MORTON. Remember, most of these releases were due to the 

CR. 

With regard to sequestration, we began to plan in earnest at the 

beginning of this year. 

Mr. JORDAN. So you waited until January of 2013? 

Mr. MORTON. We waited until January, 2013—— 

Mr. JORDAN. So when did you make the decision to release the 

2,228 detainees? When was that decision made? 

Mr. MORTON. Well, the discussions on that have been ongoing 

since the beginning of this year. The actual—— 

Mr. JORDAN. More importantly—— 

Mr. MORTON [continuing]. Decisions were made—— 

Mr. JORDAN. Well, let me cut in here. I only got 5 minutes. 

When did you decide that you were going to release the 629 who 

were criminals? 

Mr. MORTON. The instructions went out on February 9. 

Mr. JORDAN. February 9. And is that the same time you made 

the decision to release the 10 level 1 felons? 

Mr. MORTON. The 8 level 1 felons—— 

Mr. JORDAN. Or 8 level 1 felons? 

Mr. MORTON [continuing]. Yes—were part of that overall decision. 
142 

Mr. JORDAN. And do you think maybe if you would have started 

planning sometime before this year—you had 20 months to get 

ready for it—do you think maybe we would not have to release 

2,228 detainees, 629 who were criminals, 8 who were level 1 felons? 

But do you not think that is maybe a question the American people 

would ask? Maybe if you started planning for this, when it actually 

became the law, maybe we would not have to let 8 felons on the 

street. 

Mr. MORTON. Congress asked us to maintain an average of 

34,000 beds over the period of the CR without sequestration, and 

we did exactly that. 

Mr. JORDAN. You keep saying the CR, but in your testimony, you 

said both CR and sequestration had an impact on this decision. 

Mr. MORTON. That is right. The sequestration resulted in a reduction of $300 million to ICE’s budget. 

Mr. JORDAN. And that is my point. You knew that was going to 

happen on August 2, 2011. If you maybe planned for it, maybe you 

would not have to release 8 level 1 felons on the street. 

Mr. MORTON. I do not think that—— 

Mr. JORDAN. You just said a few minutes ago that you did not 

start planning for this until a few months ago. 

Mr. MORTON. I disagree with your characterization that everyone 

felt that that was going to happen. 

Mr. JORDAN. Did you not just say January of this year is when 

you started planning for the sequester? 

Mr. MORTON. I disagree with your characterization that back in 

2011, everyone felt that sequestration was going to happen—— 

Mr. JORDAN. I am not asking how you felt. I am asking what was 

the law of the land. And is it the practice for the Director of ICE 

to say, you know, what? We are not going to pay attention to what 

the law of the land says. We are going to wait because we think 

it might not happen. We are going to wait and not start to implement this, not start to plan for this until January of 2013, some 

18 months later. 

Mr. MORTON. We have to make good judgments and balance 

many uncertainties, one of which was sequester. Another was the 

CR, and another—— 

Mr. JORDAN. Who makes the final decision? Who made this decision to let the 8 felons back on the street? Is that your decision or 

is that someone else in the Department who makes that decision? 

Mr. MORTON. No. The actual decisions on each case were made 

in the field. 

Mr. JORDAN. In the field. What does that mean? 

Mr. MORTON. That means by our local field officers. 

Mr. JORDAN. Do you have to sign off on that? 

Mr. MORTON. I do not. 

Mr. JORDAN. Mr. Chairman, I yield back. 

Mr. GOODLATTE. Will the gentleman yield? Would the gentleman 

from Ohio yield to me? 

Mr. JORDAN. I forgot to do that. I would be happy to yield. 

Mr. GOODLATTE. Thank you. 

I just want to make the point that when you talk about the CR 

causing problems for you, you got the funding that you requested 
143 

to be able to maintain the mandate of 34,000 beds as a result of 

that. 

Now, you have a 5 percent cut moving forward from March the 

first to the end of this year. That 5 percent cut, if you were to 

apply it—and I do not think you should apply it equally across the 

entire budget of your department, that you could make keeping 

criminal aliens in detention a priority. But assuming you went 

ahead with your decision, a 5 percent reduction of 34,000 would be 

a reduction of about 1,700 people. Now, you have already reduced 

it by 2,200, and we have a document that has already been admitted into the record that shows a plan to reduce it down to an average daily population of 28,248. 

So this is well beyond what sequestration would require you to 

do, even assuming your policy objective of spreading your costs 

evenly across the entire department. I would not do that. I would 

look into these excess funds you have in other areas and use those 

to keep people in there and not release them onto the streets. If 

you need to work it down a little bit over time, wait until you have 

got people who have been processed through the system and been 

deported rather than putting them back out on the streets in the 

country. 

But it is now an opportunity for, I think, the gentleman from 

Pennsylvania, Mr. Rothfus, to ask his questions. He is recognized 

for 5 minutes. 

Mr. ROTHFUS. Thank you, Mr. Chairman. 

And thank you, Director Morton, for being here today, and 

thanks for the hard work that you are doing at ICE and all the 

men and women are working for this country there. 

A few questions I am trying to track down. Your written testimony stated that every individual released was placed on an alternative form of ICE’s supervision. Is there a standard protocol for 

the level 1 offenders to have a certain type of alternative form of 

supervision? 

Mr. MORTON. No, although generally a level 1 offender will receive more attention than someone else. Again, it is a case-by-case 

determination. 

Mr. ROTHFUS. What kind of things would you be doing with a 

level 1 offender once they are released? 

Mr. MORTON. Well, let me give you some examples. We would determine do they have any United States citizen children, how old 

are they, how long have they been in the United States. 

Mr. ROTHFUS. Are these individuals given an ankle bracelet, 

something like that? 

Mr. MORTON. Some of them may have an ankle bracelet. Some 

of them may have a bond. It depends—— 

Mr. ROTHFUS. So there is no standard protocol for a level 1 offender. 

Mr. MORTON. No. The law allows us to pursue various forms of 

supervision. 

Mr. ROTHFUS. You testified on March 14 before the Appropriations Committee’s Homeland Security Subcommittee that there 

were 10, not 8—that there were 10 level 1 offenders that were released. Can you explain the discrepancy in your testimony today? 
144 

Mr. MORTON. Yes, I can. So that is correct. We testified that 

there were 10. As it turned out, when we reviewed every single one 

of the level 1 offender cases, two of the cases involved 

misclassification in the computer system and their criminal record 

was less severe than initially thought, and they were reclassified 

as level 2 offenders. 

Mr. ROTHFUS. So you had eight level 1 offenders, four of whom 

have been apprehended. 

Mr. MORTON. Four of whom are in our custody and four of whom 

remain—— 

Mr. ROTHFUS. Do you know where the other four are? 

Mr. MORTON. I do, indeed. 

Mr. ROTHFUS. And why are they level 1 offenders, do you know? 

Mr. MORTON. I do. So there was the gentleman that I referred 

to earlier who was released in Arizona. He had convictions for theft 

offenses and drug offenses. He is 68 years old and has been in the 

country as a lawful permanent resident for 44 years, and an immigration judge found he was not a danger to the community. 

There were two other releases from Illinois, larceny and criminal 

trespass. The individual has three United States children, one with 

a degenerative eye disease. An immigration judge found he too was 

not a danger to the community. The second Illinois case involved 

an immigration offense and misdemeanor offenses. He is 55 years 

old and has been in the country 34 years. 

And the California case involved burglary, vandalism, and a 

DUI. He is a 23-year resident. Both parents are naturalized United 

States citizens, and he is on ATD with GPS monitoring 24/7. 

Mr. ROTHFUS. Now, you testified that you had no communication 

with DHS leadership prior to the release of the individuals. Is that 

correct? 

Mr. MORTON. That is correct. 

Mr. ROTHFUS. Did anyone at ICE have any discussion with anybody at DHS leadership? 

Mr. MORTON. Not that I am aware of. 

Mr. ROTHFUS. Any discussion that you or anybody at ICE would 

have had with anybody at the Department of Justice? 

Mr. MORTON. Not that I am aware of. 

Mr. ROTHFUS. Any discussion that you or anybody at ICE would 

have had a discussion with somebody at the White House? 

Mr. MORTON. Not that I am aware of. 

Mr. ROTHFUS. Did you or anyone at ICE receive any talking 

points or messaging points from the White House on how to handle 

budget issues with respect to sequestration? 

Mr. MORTON. We have certainly received instructions from the 

Office of Management and Budget on planning, how to execute sequestration were it to come to pass. 

Mr. ROTHFUS. In fiscal year 2012, it looks like the appropriation 

that was allocated for custody operations was just over $2 billion, 

$2,500,000,000. 

Mr. MORTON. Yes, sir. 

Mr. ROTHFUS. Under the CR, that number is continued into fiscal 

year 2013 to at least March 27, irrespective of the sequester. The 

President requested $1.9 billion about for fiscal year 2013 for custody operations. Is that correct? 
145 

Mr. MORTON. Yes, sir. 

Mr. ROTHFUS. Looking at the fiscal year 2012 number of 

$2,500,000,000, 5 percent of that number is $102 million. So that 

is the number I think we are looking at today with respect to your 

concerns of custody—we were talking about $300 million, but the 

number is really $102 million in the context of custody operations. 

Correct? 

Mr. MORTON. For custody operations, it is a little over $100 million. 

Mr. ROTHFUS. And you have already discussed that there is $120 

million sitting out there in user fees that is being held. 

Mr. MORTON. There is an unobligated balance in one of the user 

fees. It does not provide for spending in direct terms for custody 

operations, but it does allow—it could be used for some custodial—— 

Mr. ROTHFUS. How many meetings did you have with your CFO 

with respect to how to get through the budget—— 

Mr. MORTON. Excuse me. I did not—— 

Mr. ROTHFUS. How many meetings have you had with your CFO 

with respect to trying to work your way through this budget process? 

Mr. MORTON. Oh, numerous. 

Mr. ROTHFUS. And when did those meetings start? 

Mr. MORTON. So the meetings have been ongoing for the last couple of weeks to make sure that we deal with sequester as it plays 

out. Obviously, we are still waiting on our funding for the next 6 

months, and we want to make sure that we end the year here on 

March 27 within the appropriations directions that we have, less 

the money for sequester. 

Mr. ROTHFUS. I yield back, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

The gentleman from Texas, Mr. Poe, is recognized for 5 minutes. 

Mr. POE. Thank you, Mr. Chairman. 

I think I am last. So your day is done with Congress as soon as 

I am through, I believe. 

I want to go through the basics again. This decision was not 

made by the President. It was not made by the Secretary of Homeland Security, and this decision was not made by you. Is that correct? 

Mr. MORTON. That is right. The decision was made by the career 

officials in ERO and in discussion with the CFO. 

Mr. POE. So the financial folks made this decision basically. 

Mr. MORTON. And the operational people responsible for it. 

Mr. POE. And the people that have been released—you know who 

these people are. Is that correct? The 2,000-plus. We know who 

these people are. 

Mr. MORTON. We as in the Agency. 

Mr. POE. You. 

Mr. MORTON. Yes. 

Mr. POE. Could you furnish the names and country of origin to 

the Chairman? 

Mr. MORTON. We—— 

Mr. POE. Could you do that or not? Either yes or no. 
146 

Mr. MORTON. Well, with the exception of personal identifying information that by law we are restricted from giving, we are providing—— 

Mr. POE. But that does not include their names or—— 

Mr. MORTON. We are happy to provide a summary of the cases, 

individual cases, and to the extent—— 

Mr. POE. Let me reclaim my time. I reclaim my time. You can 

give the names and the country of origin. You can do that. Correct? 

Mr. MORTON. Do we know who these individuals are? 

Mr. POE. Yes. 

Mr. MORTON. Yes, sir. 

Mr. GOODLATTE. If the gentleman would yield. 

Mr. POE. Yes, I will. 

Mr. GOODLATTE. I would just inform the Director. The Privacy 

Act does not apply to—— 

Mr. MORTON. I understand if the full Committee or the Chairman makes a request. I understand that. 

Mr. POE. So the answer to my question is, yes, you can supply 

the names of the people and the country of origin to the Chairman 

if he requests. It is a simple question. You can do that. 

Mr. MORTON. If the full Committee were to request it, yes. 

Mr. POE. So the decision was made by the financial folks. 

Now, my question to you is this. Do you understand, do you see 

that the way this was handled could scare the American public? I 

mean, have you got that message yet, or do you think that occurred? I will tell you it occurred in my district. It could not have 

been handled worse by allowing, all of a sudden, the press to know 

2,000 people that are being detained are being released by your 

Agency, and you did not know about it. So I think it could not have 

been handled worse. I am not saying it was done on purpose to 

scare the people. I am saying the result occurred that way, that it 

did have the effects of scaring the American public. 

I sent Secretary Napolitano a letter. She just, of course, did not 

respond. I gave you a copy of the letter last week or your staff. I 

would like for you to respond to these questions. I would like this 

letter filed for the record. I ask unanimous consent. Mr. Chairman, 

I ask unanimous consent. 

Mr. GOODLATTE. Without objection, they will be made a part of 

the record. 

[The information referred to follows:] 
147 

Mr. POE. Thank you. 

We have heard a lot about people being released, released, released. And 40 percent do not come back for whatever reason. They 

do not show up for their deportation hearing—many of those people. Because of budget restraints, because there is not enough room 

in the inn, the determination is made you are released until your 

deportation hearing, which may be a year from now or even longer, 

and 40 percent just do not show up. 
148 

Now, I was a judge in Texas for 22 years. I tried only felony 

cases. If I had a 40 percent non-return of people who were released 

on bond or pretrial release, they would have had me in jail for that. 

So it seems to me we operate under a system where Border Patrol and ICE I think do a good job capturing folks, and then all of 

a sudden, they are released. And then they go to capture 40 percent of them again because they do not show up for their deportation hearing. 

My question to you is this. Since this financial officer made this 

decision—and you did not make the decision, the Secretary of 

Homeland Security did not make this decision—can the financial 

officer just decide—do you think he has or she has the legal authority to release 30,000 of them? Do they have the legal authority? If 

they had legal authority to release 2,000, does the financial officer 

have the legal authority to release 20,000 or 30,000? You are a lawyer. Can you answer that question? 

Mr. MORTON. I can. First, just to be clear, it was not the chief 

financial officer. It was the operational leaders of ERO in consultation with the chief financial officer. 

Mr. POE. Can this group of people who released the individuals 

that you did not know about—can they just release 20,000? Do they 

have the legal authority to do that? 

Mr. MORTON. The people who are mandatory detention must be 

detained. 

Mr. POE. That is not most of these people, though, is it? 

Mr. MORTON. The 2,228 individuals by definition the instructions 

were they could not be subject to mandatory detention. About twothirds of the people in our custody right now are subject to mandatory detention and would need to be detained. Your scenario where 

we would release 30,000 people is not possible because the law directs us to—— 

Mr. POE. So they could release a third of them, though. 

Mr. MORTON. We could release those people—— 

Mr. POE. In theory, you could release about a third of them, 

which is about 10,000. 

Mr. MORTON. Those individuals that the law provides discretion 

for. 

Mr. POE. It is a simple yes or no. Do you believe that your Agency has the legal authority without judicial intervention, Federal 

judge, immigration judge—without judicial intervention, do you 

have the legal authority to release that one-third, 10,000? Either 

you do or you do not. 

Mr. MORTON. We have the legal authority to release people not 

subject to mandatory detention. 

Mr. POE. And that is a scary thought. 

I yield back. 

Mr. GOODLATTE. I thank the gentleman. 

Director Morton, I want to thank you. You have given 4 hours 

of your time, and I know it has not been your favorite experience. 

But I will tell you that I am very concerned with how this has 

been handled. To me, here in the Congress, we are in the midst of 

a very concerted effort on both sides of the aisle, a bipartisan effort, 

to address the kind of immigration reform that many people in this 
149 

country think that we need to have and that you struggle with the 

problems of our current system every day. 

Ms. LOFGREN. Mr. Chairman? 

Mr. GOODLATTE. In the midst of this process, for the release, 

without any notification to the Congress of 2,200 criminal aliens, 

or a portion of which were criminal aliens, and the planned release, 

according to documentations here of several thousand more, is not 

helpful when one of the critical issues that we are going to have 

to deal with in the Congress is how to convince the American people that if we make the kind of immigration reform that is being 

discussed, that we provide legal status to millions of people—how 

will we convince them that this problem will not reset itself, it will 

not reoccur. What changes can we make? What guarantees can we 

give the public that our immigration laws will be enforced and we 

will not have millions of people not lawfully in the country? 

Now, you have limited resources to address that and we certainly 

understand that. You have been given a mandate by the Congress 

to retain 34,000 people, and to say that lower level officials can 

automatically, not based upon individual circumstances of the people being detained, but based upon spending measures and the 

available funds, make this decision without ever even consulting 

with you, without ever even your consulting with the Secretary of 

Homeland Security, without ever considering that if the Congress 

has a mandate and you need the funds to meet the mandate, you 

should come to the Appropriations Committee and ask for the reprogramming of funds that are available and accessible for you to 

do that. 

I think that given the set of circumstances we are in, it is an unfortunate set of circumstances that we find ourselves in, and this 

has not been helpful to that process because we have got to build 

the confidence of the American people that if we do comprehensive 

immigration reform in some way, shape, or form, we are going to 

address the enforcement side of this just as aggressively as we enforce the reforming of our legal immigration system and the reforming of what we do with people who are not lawfully here right 

now. 

And I know the gentlewoman from California wanted me to yield 

to her, and I will do that. 

Ms. LOFGREN. I thank the gentleman for yielding. 

I think this has been a useful hearing getting the facts out. I do 

not disagree that this could have been handled in a better way. I 

think it raised alarms that were unnecessarily raised. 

But the issue of a 40 percent failure rate, failure to appear rate, 

has been raised. That is from a 2007 IG report, and I am wondering if we could ask the department to report what is the current 

FTA rate, not right this minute, but subsequent to the hearing. 

Mr. GOODLATTE. I think that is a fine request. We think there 

is more recent data, but we would also ask the Director, if that 

data is available for a more recent period than 2007, to provide 

that to us, if it is available to you. And if we have additional information, we will provide that to you as well. 

I thank the gentlewoman for her question. 

And I thank the Director again for his participation here today. 
150 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the Director or additional 

materials for the record. 

And with that, this hearing is adjourned. 

[Whereupon, at 4:56 p.m., the Committee was adjourned.] 
(151) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
152 

Material submitted by the Honorable Doug Collins, a Representative in 

Congress from the State of Georgia, and Member, Committee on the Judiciary 
153 

The Hon. Janet Napolitano 

Mru:ch 7,2013 

Additionally, we are highly skeptical of your claim that a low-level official orchestrated 

this extraordinary ded,ion without yonr knowledge or approval. "Detainee populations and how 

that is managed back and forth is really handled by career officials in the field," yon told ABC 

News. 

Furthermore, other Admin.islration officials continLle to deceive the pllhlic On the severilY 

of III is decision. For exru:nple, White House spokesman Jay Carney said last Wednesday "a rew 

hundred" illegal aliens were released. Then, on Friday ICE spokesman Brian Hale said, "ICE 

reviewed its detained population to ensure detention levels stay within ICE's current budget and 

placed several hundred individuals on methods of supervision less costly than detention." 

We believe ICE should prioritize detention of illegal aliens, and find other methods of 

minimizing the impact of the mandatory sequestration cuts. For example, in 2012, ICE opened 

up a state-of· the-art detention facility in Kames City, Texas. This facility cOlllains a library with 

free Internet access. cablc television, an indoor gym with basketball courts, soccer fields, and 

equipment for beach volleyball. The cosl to build this complex was estimated to be over 30 

million dollars. 

in an effort to better understand how DIIS implemented its plan for dealing "ith 

sequestration, we respectfully request that you provide detailed responses to the following 

questions: 

(1) 'W11en was the decision made to ",I.,a."" illegal aliells because of sequestration and 

wltal Was the timcrramc for the releases to occur? Ifthere is a memorandulll or other 

document detailing the specifics of the program, please include a copy. 

(2) How many illegal aliens wcre released in Georgia and how many have criminal 

convie-tions? W hat arc the specific crimes committed by the illegal aliellS released in 

Georgia? 

(3) ICE spokesman Brian Hale was quoted in the AP story as saying. "AI this point, we 

don't anticipate additional releases, but that could c.hange." Has DHS "rficially cnded 

the progo,m to rdease illegal aliens because of sequestration or is it only temporarily 

suspended? 

(4) 'Vhat is the Oversight policy for tracking the released illegal aliens? What are the 

repercussions if all illegal alien violates the temlS of his/her release? 

(5) How much has DHS reduced its budget by releasing these illegal aliens? What are the 

costs and details of all "altematives to detention" employed by ICE? 

2 
154 

The Han, Janet Napolitano 

March 7,2013 

(6) Will DRS implement any budget cuts to facility mainlen~m'e, eqllipm~nt 

maintenance, commlmications, or travel? 

(7} Is there an official DHS policy to reduce the l1umber of detention beds from a 

Congressionally-mandated 34,000 to less lhan 26,000'1 

(8) If DHS gets its blidget restored to pre-sequestration levels, will the released illegal 

aliens ht: ordered back t<) detention centers Or remain in the general public? 

We respectfully request that you provide your responses to these questions no latcr than 

March 31, 2013, Thank you in advance for your cooperation and timely attention to this matLer. 

6)~ DOLlg~ Member of Congress 

Ninth District of Georgia 

Member or C()ngT~ss 

Eleventh District of Georgia 

Paul Broun 

Member of Congr~s, 

Tenth District of Georgia 

Sincerely, 

Member of Congress 

Third District of Georgia 

Tom Graves 

Member of Congress 

Fourteenth District of Georgia 
155 

March 19,2013 

Dear Secretary Napolitano: 

We write in follow-up to our March 7,2013 letter regaming. the decision made by 

Immigration and Customs Euforcemenf s decision to mass release illegal aliens in federal 

custody, On March 14, 2013, ICE Director Morton testified at a House Appropriations 

Committee hearing that the agency released a total of 2,228 illegal immigrants from local jails 

"throughout the countIy" between Feb, 9 and March liar "solely bmlgetary reasons," 

I'reviously, Administration officials, including White House spokesman Jay Carney and 

ICE spokesman Brian Hale, indicated that only a "few hundred" illegal aliens in federal custody 

were released, We arc vcry concerned that the administration seems bent on misleading the 

public on the extent ofthc ongoing releases, Additionally, (he administration initially claimed 

that those released did not pose a risk to the public. However, at th~ March 14th Appropriations 

Committee hearing, Director Morton acknowledged that among the immigrant~ released were 10 

people considered the highest level of offender and numerous others were with multiple drunken 

driving offenses, 

Our coneeI11 with this decision continues to intensify, We remain incrca'ingly skeptical 

that these deeisions continue to be orchestrated by low-level officials, Tn addition to the 

questions posed in our March 7 leller, we respec(fully request that you provide detailed 

responses to the following qncstions: 

(1) How many illegal aliens have been released from the North Georgia Detenlion 

Center in Gainesville? How many additional releases arc pImmed from the North 

Georgia Detention Center? I low much ha~ the North Georgia Detention Center 

reduced its budget as a result of these releases? 

(2) How many illegal aliens have been released from the Atlanta City Detention 

Center? How 1l1mlY additional releases .replanned tram the Atlanta City Detention 

Center? How much has the Atlanta City Detention Center reduced its budget as a 

r.~sult of these releases? 

(1) How many illegal aliens have been released from the Irwin County Detention 

Center? How many additional releases are planned from the Irwin COlmly Detention 
156 

The Hon. Janet Napolitano 

March 19.2013 

Center? How much has the Irwin County Detention Center reduced its budget as a 

resull "fihese releases? 

(4) How many illegal aliens have been released from the Stewart Detention Center? 

How many additional releases arc planned from the Stewart Detentiun Center? How 

much has the Stewart Detention Center reduced its hudget as a result of these 

releases? 

(5) Were any of the the 10 "level one" offenders released f!'Om a Georgia facility? If so, 

what ,vcre the specific crimes cormnittcd" Are tltere any plans to return them to 

detention? 

We respectfully request that you provide answers to these questions. and the questions 

posed in our March 7 letter, no later than March 31, 20 I}. Thank you in advance for your 

cooJ1"ration and timely assistance in this matter. 

.....--, /\ / 

(L-j(J!:4 

lJ6\1g Colllf:~J 

Member oJ'1::ungrcss 

Ninth District of Georgia 

Member of Congress 

Tenlh District of Georgia 

Member uf C'lF'gte" 

Sixth District of Georgia 

Sincerely, 

2 

Member of Congress 

Third District of Georgia 
157 

Æ