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S. HRG. 113–54 

BUILDING AN IMMIGRATION SYSTEM WORTHY 

OF AMERICAN VALUES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MARCH 20, 2013 

Serial No. J–113–11 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coons, Hon. Christopher A., a U.S. Senator from the State of Delaware ........... 1 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 4 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 194 

WITNESSES 

Arulanantham, Ahilan T., Senior Staff Attorney, American Civil Liberties 

Union, Immigrants’ Rights Project, and Deputy Legal Director, American 

Civil Liberties Union of Southern California, Los Angeles, California ........... 6 

Cutler, Michael W., Senior Special Agent (Ret.), Immigration and Naturalization Service, New York, New York ..................................................................... 8 

Grussendorf, Paul, Retired Immigration Judge, Shepherdstown, West Virginia ....................................................................................................................... 11

Stampp, Pamela A., Managing Immigration Attorney, Castro Law Firm, Wilmington, Delaware ............................................................................................... 14 

Ting, Jan C., Professor of Law, Temple University Beasley School of Law, 

Philadelphia, Pennsylvania ................................................................................. 12 

QUESTIONS AND ANSWERS 

Responses of Michael W. Cutler to questions submitted by Senator Grassley .. 23 

Responses of Jan C. Ting to questions submitted by Senator Grassley ............. 50 

SUBMISSIONS FOR THE RECORD 

American Association of People with Disabilities, Autistic Self Advocacy Network, Bazelon Center for Mental Health Law, Disability Rights Education 

and Defense Fund, National Disability Rights Network, March 20, 2013, 

joint letter ............................................................................................................. 52 

Arulanantham, Ahilan T., Senior Staff Attorney, American Civil Liberties 

Union Immigrants’ Rights Project, and Deputy Legal Director, American 

Civil Liberties Union of Southern California, Los Angeles, California, statement ...................................................................................................................... 55 

Advocates for Human Rights, Minneapolis, Minnesota, statement .................... 101 

American Immigration Council, Washington, DC, statement ............................. 105 

American Immigration Lawyers Association, Washington, DC, statement ........ 108 

Americans for Immigrant Justice, (formerly FIAC, Florida Immigrant Advocacy Center), Washington, DC, statement ......................................................... 113 

Asian American Justice Center, Mee Moua, President & Executive Director, 

on behalf of Asian Pacific American Legal Center, Asian Law Caucus, 

and Asian American Institute, Washington, DC, March 20, 2013, letter ....... 120 

Asian & Pacific Islander American Health Forum (APIAHF), Washington, 

DC, statement ...................................................................................................... 124 

Banished Veterans, Hector Barajas, Pueblo, Colorado, March 19, 2013, letter . 132 

Cutler, Michael W., Senior Special Agent (Ret.), Immigration and Naturalization Service, New York, New York: 

statement .......................................................................................................... 136 

closing statement .............................................................................................. 140 

Faith-Based Groups (162), February 8, 2013, joint letter .................................... 148 

Grussendorf, Paul, Retired Immigration Judge, Shepherdstown, West Virginia, statement ................................................................................................... 160 
Page

IV 

Henderson, Wade, President & Chief Executive Officer, Leadership Conference on Civil and Human Rights, Washington, DC, statement .................. 168 

Huang, Margaret, Executive Director, Rights Working Group, Washington, 

DC, statement ...................................................................................................... 176 

Human Rights First, Washington, DC, statement ................................................ 183 

Lutheran Immigration and Refugee Service, Legislative Affairs Office, Washington, DC, statement .......................................................................................... 196 

McCarthy, Mary Meg, Executive Director, Heartland Alliance’s National Immigrant Justice Center, Chicago, Illinois, statement ........................................ 201 

National Immigration Law Center, Washington, DC, statement ........................ 208 

National, Regional, State and Local Organizations, joint statement .................. 213 

Refugee Protection Organization, faith-based group, joint statement ................ 216 

Stampp, Pamela A., Managing Immigration Attorney, Castro Law Firm, Wilmington, Delaware, statement ............................................................................ 224 

Ting, Jan C., Professor of Law, Temple University Beasley School of Law, 

Philadelphia, Pennsylvania: 

statement .......................................................................................................... 230 

closing statement .............................................................................................. 236 

Tiven, Rachel B., Executive Director, Immigration Equality, Washington, DC, 

statment ................................................................................................................ 239 

Vera Institute of Justice, New York, New York, statement ................................. 245 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government or other criteria determined by the Committee, list: 

American Immigration Council—‘‘Two System of Justice’’ http:// 

www.immigrationpolicy.org/sites/default/files/docsaic— 

twosystemofjustice.pdf 
(1) 

BUILDING AN IMMIGRATION SYSTEM 

WORTHY OF AMERICAN VALUES 

WEDNESDAY, MARCH 20, 2013 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:06 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Christopher Coons, 

presiding. 

Present: Senators Coons, Hirono, and Grassley. 

OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. 

SENATOR FROM THE STATE OF DELAWARE 

Senator COONS. Good afternoon. I would like to call to order this 

hearing of the U.S. Senate Committee on the Judiciary. I welcome 

our five witnesses and look forward to their testimony this afternoon. 

Let me just say at the outset, I apologize to our witnesses and 

those watching. I have just been notified there may be as many as 

seven votes beginning in 10 minutes, and I will do my best to keep 

the flow of the hearing moving forward, but the obligation to go 

cast a vote may interfere with the smooth forward motion of this 

hearing. I would just ask all of your indulgence as we do our best 

to keep moving forward through those many votes on our budget 

this afternoon. 

America earned its place in the world because of the immigrants 

who have come before us, bringing their culture, bringing their passion, bringing their ideas to our shores. And when I have asked 

Delawareans and Americans what they expect in the changes being 

considered in our immigration system, they say they want a system 

that keeps us safe from foreign threats and terrorism and from 

dangerous individuals in our communities. They say they also want 

a system that protects the American work force and grows our 

economy. And they want a system that is fair and transparent and 

reflects our most fundamental humanitarian values. 

I think our immigration system does a good job of enforcement. We certainly spend enough, more than $15 billion in the last Fiscal 

Year alone, as compared to $11 billion on all other Federal law enforcement combined. 

Let me say that again. In terms of enforcement, we are certainly 

investing enough, nearly $16 billion in the last fiscal year, which 

is more than spent on the FBI, the ATF, the DEA, and the U.S. 

Marshals Service combined. 
2 

And it has a significant and broad impact. There are 32,000 immigrants in detention in the United States right now in more than 

250 facilities. And there will be about 400,000 at some point in the 

course of the year in detention. ICE deported about the same number, roughly 400,000 people from this country last year, and that 

number has been steadily climbing and now stands at about double 

the number of removals in 2001. 

But when I tell people that our immigration system does not 

allow immigration judges to consider circumstances, to balance different factors, to consider risk of flight, ties to the community, and 

whether or not there are U.S. citizen children who are dependent, 

they do not think that is consistent with our most basic values. 

And yet, immigrants in detention are denied any opportunity to 

make these and other arguments in roughly two-thirds of cases. 

And they are surprised, many, to learn that about a quarter of 

those deported have U.S. citizen children who must face either a 

childhood without their parent or effective deportation themselves. 

Now, those who are entitled to bond must wait weeks for an opportunity to present their case. Our civil detention system is 

geared toward maintaining a minimum number of detainees in its 

current construction rather than ensuring the safety of our community as its first priority. 

Long-time legal permanent residents with a U.S. family, a history of steady employment, those even who have served honorably 

in our armed forces can be, and in some cases have been, deported 

for any of a litany of relatively minor offenses that qualify only 

under the immigration code as aggravated felonies. 

Immigrants, even children and those with mental disabilities, 

lack not just the right to appointed counsel, but also the ability to 

obtain badly needed documents from the Government necessary to 

prove their cases. Even for immigrants entitled to relief under the 

law, the deck is in many ways stacked against them. 

While our Constitution prohibits ex post facto criminal laws, our 

immigration law does not respect that basic fairness principle 

under the 1996 revisions to the code. The list of crimes and activities leading to mandatory deportation was expanded and given retroactive effect. As a result, the law now requires mandatory deportation even for decades-old, non-violent offenses, such as petty 

theft, simple drug possession, or failures to appear in court, all of 

which were not grounds of deportation before 1996. 

As I said at the beginning, we are a Nation of immigrants, but 

in my view, there are important elements of our immigration law 

that are inconsistent with America’s fundamental values. Our system exacts a high cost on families, on human dignity, and on civil 

liberties. This cost, in my view, is unnecessary, unwarranted, and 

unfair. 

At roughly $163 per day per bed, our current detention system 

is also enormously expensive to maintain. It could be cheaper while 

also better serving our national security interests and our national 

commitment to civil rights. 

To cite briefly just one program, the Legal Orientation Program, 

which provides some immigrants with a basic overview of their 

legal rights, it costs just $70 per participant. Armed with knowledge of their rights, and in many cases their ineligibility for any 
3 

form of relief, participants in the program spend as many as 12 

fewer days on average in detention. 

Those who have a right to remain are able to make their case. 

Those who understand they have no rights to present leave sooner. 

According to the Department of Justice, these combined effects resulted in a nearly $18 million savings last year alone. 

I understand that there are dangerous individuals in this country who should not be here, and I strongly support the work of the 

brave men and women who serve in ICE and CBP to find these individuals and remove them from our communities and reduce the 

threats on our streets. 

My concern is that we must also afford a minimum level of due 

process consistent with our national values to those people who 

find themselves in an immigration system that, although civil, 

looks in many ways like a criminal proceeding. Detention and deportation decisions should be made in the public interest and subject to independent review, where appropriate, for immigrants with 

no history of violence. Less restrictive alternatives to detention 

ought to be used to guarantee enforcement of the court’s orders. 

Immigrants ought to be advised of their legal rights and have 

meaningful access to discovery. 

Where necessary to participate meaningfully, particularly in 

cases involving children and those with mental disabilities, I think 

counsel should be provided. These are not exceptional goals, and 

they do not describe our current system. 

Under our current system, just to give one case, Hiu Lui Ng, a 

Chinese national, was detained by ICE when he appeared for his 

green card interview with his U.S. citizen wife and their two U.S. 

citizen children. Even though Mr. Ng had a good job as a computer 

programmer, and he was eligible for a green card based on a petition filed by his wife, ICE held him in detention for a long overdue 

past in absentia removal order. He was in custody for over a year 

and died due to lack of medical care while there. 

Also under our system, R.C., an Irish native who came to the 

United States as a lawful permanent resident in 1955 as a 5-yearold, was detained by ICE for 10 months just a few years ago while 

he fought, and then ultimately won, cancellation of removal for a 

misdemeanor drug offense from 2006. These and many other example cases suggest reasons for this hearing today and for us to reconsider the cost, the values, the burden, and the fairness of our 

current deportation and detention system. 

Comprehensive immigration reform cannot be truly ‘‘comprehensive’’ if it does not address current flaws that deny minimum due 

process rights consistent with our values. 

In closing, it is worth noting that we are only a few days away 

from important religious holidays of different faiths, whether 

Easter or Passover, when many of my colleagues will take time to 

reflect on our shared values. 

The book of Exodus tells us: ‘‘You shall not oppress the stranger 

of foreigner; you know how a foreigner feels, for you lived as 

strangers in the land of Egypt.’’ Pope Francis just this week was 

equally clear in his inaugural homily, exhorting leaders of many 

nations to be protectors of the most vulnerable amongst us. 
4 

I want to particularly thank Chairman Leahy for allowing me to 

hold this hearing today, as well as Ranking Member Grassley, who 

I welcome. I am glad you have joined us, Senator Grassley. And I 

would like to welcome our five witnesses today, who bring a broad 

range of experiences with our system. I look forward to their testimony and answers to our questions. 

I will now turn to Senator Grassley for an opening statement. 

Thank you. Senator. 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, Senator Coons. 

In the next few weeks, a group of Senators will unveil a comprehensive immigration bill that will include measures to secure 

the border, enhance work site enforcement, deal with millions of 

people who have come here without papers, and improve the channels for people to enter legally. 

The group’s goal is to ensure that this legislation is a ‘‘successful, 

permanent reform to our immigration system that will not need to 

be revisited.’’ 

Let me say I hear that is what I thought in 1986 when we 

passed the last bill. We have a lot of lessons to learn from that bill 

that did not accomplish what we wanted it to accomplish. 

In order to be successful in this endeavor and to ensure that we 

do not need to revisit the problem, we need a system that respects 

the rule of law and allows people to enter legally. We need to protect American workers and secure our borders. 

The title of this hearing is a reminder that we need to build an 

immigration system that is worthy of our values, including, but not 

limited to, the values of freedom, acceptance, strength, and hard 

work. 

The system must also sustain the test of time. We need creative 

solutions, a commitment to enforcement, and policies that future 

generations will embrace for years to come. 

To move forward requires a complete change in our behavior. We 

cannot simply legalize 12 million people, enforce the laws later, and 

say that the immigration system is worthy of American values that 

we have long espoused. 

I am particularly troubled with this administration’s approach to 

immigration because in the last several weeks, Immigration and 

Customs Enforcement released thousands of undocumented immigrants from detention facilities. It was clear from the start that the 

administration did not have control of the situation and did not 

consider the ramifications to public safety. 

On March 4th, Secretary Napolitano claimed that only hundreds 

of individuals were released due to budget reductions. However, the 

head of ICE came forward and acknowledged that the Department 

misled the American people, and over 2,300 people were released. 

Some of these were Level 1 offenders or violent offenders convicted 

of aggravated felonies. 

The administration has also been accused of cooking the books 

on deportation statistics. They are using deceptive marketing tactics and claiming that they have deported more people than ever 
5 

before. Now, even the President said the statistics were ‘‘deceptive.’’ 

Today we will hear about the need to consider alternative forms 

of detention. But before we make policy changes in this area, we 

need to have accurate data. Former immigrant Judge Mark Metcalf 

found that, in 2005 and 2006, 59 percent of the people here without 

document released before their hearing date never showed up for 

trial. The Executive Office of Immigration Review’s own statistics 

indicate that 52,517 aliens failed to appear for their court dates in 

2009 and 2010. This figure is on top of hundreds of thousands of 

unenforced court orders from previous years. 

Some believe that the number of those who did appear for their 

hearing actually includes those who were in Federal Government 

custody. So, of course, they have to appear. The fact is the data is 

flawed, and that is what needs to be corrected if we are going to 

make new policy. And we are going to make new policy. 

An October 2012 report from the Inspector General of the Department of Justice concluded that, ‘‘Immigration court performance reports are incomplete and overstate the actual accomplishment of the immigration court in adjudicating immigration cases.’’ 

The report says that the office reports completions even when the 

immigration courts have made no decision on whether to remove 

the aliens from the United States. As a result, the Inspector General says a case may be completed multiple times. Again, the administration is overstating success. 

The Inspector General’s report concluded that, ‘‘These flaws in 

the Executive Office for Immigration Review’s performance reporting precluded the Department of Justice from accurately assessing 

the court’s progress in processing immigration cases or identifying 

needed improvements.’’ 

The American people deserve more from this administration. Because everybody is entitled to accountability, the administration 

has a constitutional duty to faithfully uphold the laws, and when 

they do not, the American people deserve an explanation. 

And I am sure that what I say about this administration is probably true of previous administrations as well to some extent. 

So we must have America’s commitment to compassion remain 

as unprecedented as it has been. Our immigration system is a powerful expression of that commitment. My hope is that we will reform our immigration system for the better while preserving the 

commitment to freedom as well as to the rule of law. 

End of my statement. If you are Chairwoman—— 

Senator HIRONO [presiding]. Thank you very much, Senator 

Grassley, and I will be chairing this hearing until Chairman Coons 

returns. 

Before we begin the witness testimony, I would like to ask all of 

the witnesses to stand while I administer the oath. If you could 

raise your right hands. Do you solemnly swear that the testimony 

you are about to give to the Committee will be the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. ARULANANTHAM. I do. 

Mr. CUTLER. I do. 

Judge GRUSSENDORF. I do. 

Mr. TING. I do. 
6 

Ms. STAMPP. I do. 

Senator HIRONO. Please be seated. Thank you, and let the record 

show that the witnesses have answered in the affirmative. 

Our first witness today is Ahilan Arulanantham. Mr. 

Arulanantham is the deputy legal director at the ACLU of Southern California and senior staff attorney at the ACLU Immigrants’ 

Rights Project. He has successfully litigated a number of cases to 

protect the rights of immigrants, including several large class actions. He has served as a Lecturer in Law at the University of Chicago Law School, where he taught a course on Preventive Detention. Just what we are talking about today. 

Mr. Arulanantham, please proceed. 

STATEMENT OF AHILAN T. ARULANANTHAM, SENIOR STAFF 

ATTORNEY, AMERICAN CIVIL LIBERTIES UNION, IMMIGRANTS’ RIGHTS PROJECT, AND DEPUTY LEGAL DIRECTOR, 

AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, LOS ANGELES, CALIFORNIA 

Mr. ARULANANTHAM. Thank you, Madam Chairman and Ranking 

Member Grassley, and I want to thank Senator Coons for holding 

this hearing. My name is Ahilan T. Arulanantham, and I am a senior staff attorney at the ACLU. I have spent the last 12 years representing thousands of immigrants. 

My work has been united by a common theme. It is the Fifth 

Amendment’s guarantee that no person should be deprived of their 

liberty without due process of law. And the Supreme Court decided 

over 100 years ago that immigrants, whether lawfully present or 

not, are entitled to the Fifth Amendment’s protections. But in the 

last two decades, we have largely abandoned that principle. Too 

often our immigration enforcement system does not provide a fair 

day in court to those who aspire to be citizens, and the results can 

be devastating. 

As Senator Coons stated, DHS imprisons over 400,000 people 

every year. This is an entirely modern phenomenon. in 1995, we 

detained about 85,000 people for that year, and today, when money 

is tight, we imprison almost 5 times that many. 

I have spent a lot of time in immigration detention centers and 

can tell you firsthand that they are prisons. People were colored 

jumpsuits and sleep in locked cells or pods that are patrolled by 

armed guards. Some are placed in solitary confinement. And all of 

them lose their freedom, including the right just to hug their children or their spouses, because there are no contact visits in the 

overwhelming majority of immigration detention centers. 

Unlike in other prisons, nearly half of the inmates have never 

been convicted of a crime. They are refugees fleeing persecutions 

or migrants who came for a better life. And others are long-time 

lawful permanent residents, green card holders, who have a criminal history. But all of them, by definition, have finished serving 

their sentences. They remain imprisoned only because they are immigrants. 

Because immigration detention and deportation are considered 

civil penalties rather than criminal punishments, immigrants have 

no right to many of the basic protections that criminal defendants 

have. The most important of these may be the right to appointed 
7 

counsel for those who cannot afford it. The Government recognizes 

no right to an appointed attorney for anyone in deportation proceedings. 

Three years ago, we filed a lawsuit on behalf of Jose Antonio 

Franco Gonzalez. Mr. Franco has a very serious cognitive impairment. He does not know his own birthday or his age. He cannot 

tell time. When the Government sought to deport him, a psychiatrist determined that he had a severe cognitive disturbance that 

rendered him totally unable to understand the proceedings. But the 

judge did not appoint an attorney to represent him. Instead, he 

closed the case, citing his incompetence, and sent Mr. Franco back 

to his detention cell. And because he had no lawyer to argue for 

his case and no right to a bond hearing because of a single criminal 

conviction, he remained there with no active proceedings in his 

case for the next 41⁄2 years. Taxpayers spent nearly $300,000 to detain him, money that could have paid for lawyers for dozens of immigrants. 

Sadly, Mr. Franco’s case is not unusual. Every day in our immigration courts, trained DHS attorneys argue for the deportation of 

indigent, unrepresented people who are not capable of defending 

themselves. Some of them will be deported without the benefit of 

legal representation, even though they may have lived here for 

years, or face separation from their U.S. citizen family members 

who may be the only support system they have ever known. Every 

day people who could face persecution or torture if deported and 

speak and read no English have to present claims for asylum entirely by themselves. And even children suffer this fate. They go before immigration judges on a daily basis with no attorney to assist 

them. 

Immigrants facing deportation also have no right to a prompt 

bail hearing, and in most cases, no right to a bail hearing at all. 

Although detention—when you hear that word, it brings to mind 

a brief period of stay. I have represented many people who lost 

years of their lives in the so-called detention centers. My first client 

in Los Angeles was a refugee from Sri Lanka, who shared my 

name. His name is Ahilan, and he spent 41⁄2 years, half of his 20s, 

locked in an immigration prison because DHS was appealing his 

case. 

Just this morning, I heard from another one of my clients, the 

Reverend Raymond Soeoth. He is a Christian minister who fled 

Muslim majority Indonesia. He lost 21⁄2 years of his life—and his 

successful small business as well—while his case was pending in 

front of immigration courts. When a Federal court finally ordered 

a bail hearing for him, the immigration judge ordered him released 

on bond. 

Perhaps most troubling of all, in the last 20 years our immigration laws have taken away from immigration judges the power to 

consider each individual’s case on its own. I have known too many 

American children faced with the brutal choice, lose the benefits of 

growing up in this, our great Nation, your great Nation, or lose 

your parents, because the judge has no discretion to consider your 

equities. 

I have also endured the pain of watching long-time lawful permanent residents, green card holders who are my clients, torn from 
8 

their families, from their churches, from their communities because 

our rigid immigration laws ignore the suffering of their American 

families. 

As this Committee considers reforming our immigration laws, I 

hope it will remember people like this, like Jose Franco, Reverend 

Soeoth, and Ahilan, and work to create a system that treats them 

as people, too. 

Thank you very much, Madam Chairman. 

[The prepared statement of Mr. Arulanantham appears as a submission for the record.] 

Senator HIRONO. Thank you, Mr. Arulanantham. 

Our next witness is Michael Cutler. Mr. Cutler began working 

for the Immigration and Naturalization Service in October 1971 as 

an immigration inspector assigned to John F. Kennedy International Airport. In August 1975, he became a criminal investigator for the INS in New York City. From 1988 until 1991, he was 

assigned as the INS representative to the Unified Intelligence Division of the DEA in New York. He also served on the Organized 

Crime Drug Enforcement Task Force. After a 30-year career, Mr. 

Cutler retired from the INS in February 2002. 

Mr. Cutler, please proceed. 

STATEMENT OF MICHAEL W. CUTLER, SENIOR SPECIAL 

AGENT (RET.), IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK, NEW YORK 

Mr. CUTLER. Thank you, Madam Chairman. I appreciate the opportunity to be here, and I thank Chairman Leahy, Senator Coons, 

Ranking Member Grassley, and certainly I thank you. 

I greatly appreciate this opportunity to provide my perspectives 

at this hearing concerning how America’s immigration system may 

be made more reflective and worthy of American values. And, you 

know, for me, immigration was not just my life’s work. It was also 

the story of my own family. 

My career, however, provided me with a unique front-row seat to 

the true importance of America’s immigration laws to nearly every 

challenge and threat confronting America and Americans. 

Rather than simply being a single issue, immigration is a singular issue that impacts everything from national security, criminal justice, and community safety to the economy, unemployment, 

health care and public health, education, and the environment, to 

name the most prominent. 

America’s immigration laws were enacted to achieve two critically important goals: Protect American lives and protect the jobs 

of American workers. 

A review of Title 8, United States Code, Section 1182 will make 

the purpose and intentions of our immigration laws clear. This section of the Immigration and Nationality Act enumerates the categories of aliens who are ineligible to enter the United States. 

Among these categories are aliens who have dangerous communicable diseases, suffer extreme mental illness, and are prone to violence or are sex offenders. Criminals who have committed serious 

crimes are also excludable as are spies, terrorists, human rights 

violators, and war criminals. Finally, aliens who would work in violation of law or become public charges are also deemed excludable. 
9 

It is vital to note that there is nothing in our laws that would 

exclude aliens because of race, religion, or ethnicity. 

Our valiant members of the armed forces are charged with keeping our enemies as far from our borders as possible while the DHS 

is charged with securing our borders from within. While mentioning our borders, it is vital to understand that any State that 

has an international airport or has access to a seaport is as much 

a border State as are the States to be found along America’s northern and southern borders. 

We are constantly told that the immigration system is broken. 

What is never discussed, however, is the fact that for decades the 

Federal Government has failed to effectively secure America’s borders and enforce and administer the immigration laws with integrity. These failures convinced desperate people from around the 

world that the United States is not serious about it borders or its 

laws. This impression was further exacerbated by the amnesty created by IRCA in 1986 which enabled more than 3.5 million illegal 

aliens to acquire lawful status and a pathway to United States citizenship. 

This supposed one-time program that was to finally restore integrity to the immigration system was an abysmal failure. And it 

could be argued that the failures to effectively enforce the immigration laws, especially where employer sanctions were concerned, 

aided and abetted and encouraged the greatest influx of illegal 

aliens into this country in the history of the United States. 

Respect for America’s immigration laws has been further eroded 

by the advocacy by the administration and some leaders for the 

creation of a program under the aegis of ‘‘Comprehensive Immigration Reform’’ that, if enacted, would provide millions—actually, unknown millions of illegal aliens, whose true identities and entry 

data are unverifiable, with pathways to citizenship. This program 

is problematic for a number of reasons, but first and foremost is 

the undeniable fact that there is no way to determine the true 

identities of these aliens or verify how or when they entered the 

United States. 

We are also seeing the same problem with the program known 

as DACA, Deferred Action for Childhood Arrivals. There is no way 

of verifying the information contained in these applications. It 

should be noted that the aliens who would apply for DACA would 

be aliens who would have been able to make this filing under the 

DREAM Act, but that did not pass the legislative process. 

What is really important to understand, though, is that time and 

again the GAO and the OIG have pointed to a lack of integrity to 

the immigration benefits program. Fraud not only undermines the 

immigration system but national security and opportunities for 

American workers as well. 

Here are two important excerpts from the 9/11 Commission Staff 

Report. First of all, the preface of the reports begins by saying: 

‘‘It is perhaps obvious to state that terrorists cannot plan and 

carry out attacks in the United States if they are unable to enter 

the country. Yet prior to September 11, while there were efforts to 

enhance border security, no agency of the U.S. Government 

thought of border security as a tool in the counterterrorism arsenal.’’ 
10 

The next paragraph I want you to consider is that, ‘‘Terrorists in 

the 1990s, as well as the September 11 hijackers, needed to find 

a way to stay in or embed themselves in the United States if their 

operational plans were to come to fruition.’’ And they determined 

that it ‘‘could be accomplished legally by marrying an American citizen, achieving temporary worker status, or applying for asylum 

after entering. In many cases, the act of filing for an immigration 

benefit sufficed to permit the alien to remain in the country’’ where 

they had the opportunity to ‘‘conduct surveillance, coordinate operations, obtain and receive funding, go to school and learn English, 

make contacts in the United States, and acquire necessary materials to execute an attack.’’ 

On December 7, 2012, the OIG did a study on the SAVE program 

and noted that 800,000 illegal aliens who were currently at large 

may well have criminal histories, yet the SAVE program does not 

have all of its data in the files that need to be there, and this study 

that was done identified that 12 percent of the time the files are 

wrong, so that there are instances where illegal aliens or aliens 

who should be subject to removal are being considered as being 

here legally. 

Adding to this, we have the problem of prosecutorial discretion 

where the administration has not been arresting illegal aliens, and 

most recently was the releasing of the criminal aliens, in fact, that 

Senator Grassley talked about. 

I want to make this clear: Law enforcement is at its best when 

it creates a climate of deterrence to convince those who might be 

contemplating violating the law that such an effort is likely to be 

discovered and that, if discovered, adverse consequences will result 

for the law violators. Current policies and statements by the administration, in my view, encourages aspiring illegal aliens from 

around the world to head for the United States. In effect, the starter’s pistol has been fired, and for these folks, the finish line to this 

race is the border of the United States. 

Back when I was an INS special agent, I recall that Doris Meissner, who was at the time the Commissioner of the INS, said that 

the agency needed to be ‘‘customer oriented.’’ Unfortunately, while 

I agree about the need to be customer oriented, what Ms. Meissner 

and apparently too many politicians today seem to have forgotten 

is that the ‘‘customers’’ of the INS and of our Government in general are the citizens of the United States of America. 

I look forward to your questions. 

[The prepared statement of Mr. Cutler appears as a submission 

for the record.] 

Senator COONS. [presiding.] Thank you, Mr. Cutler. 

Our next witness is Paul Grussendorf. Judge Grussendorf was an 

immigration judge in Philadelphia and San Francisco from 1997 to 

2004. In Philadelphia, he was responsible for hearing the deportation cases of immigrants serving prison sentences at Allenwood 

Federal Penitentiary for felony convictions. In San Francisco, he 

was the judge responsible for hearing the cases of all detained immigrants in northern California. Paul Grussendorf is also the author of a legal memoir entitled, ‘‘My Trials Inside America’s Deportation Factories.’’ 

Welcome, Judge Grussendorf. Please proceed. 
11 

STATEMENT OF PAUL GRUSSENDORF, RETIRED IMMIGRATION 

JUDGE, SHEPHERDSTOWN, WEST VIRGINIA 

Judge GRUSSENDORF. Thank you, Acting Chairman Coons and 

Ranking Member Grassley and the distinguished members of this 

Committee. It is my honor to appear before you today. 

As you mentioned, Senator, when I was in Philadelphia, I was 

responsible for the so-called Institutional Hearing Program, which 

is the program that accelerates removal hearings for individuals 

who are convicted of aggravated felonies, and the hearings are held 

in Federal penitentiaries prior to the individuals’ release from their 

criminal sentence in order to accelerate their eventual removal 

from the country. And, again, when I was in San Francisco, myself 

and my excellent colleague Michael Yamaguchi, we were the two 

judges responsible for the entirety of all detained individuals, migrants, aliens who came into ICE custody in northern California. 

I want to emphasize that today I am here as a private citizen. 

I am retired. I am not representing either DOJ or EOIR or any 

Government agency. My views are my own. But I can assure you 

that having spoken recently with many of my former colleagues, 

many of my colleagues share my views. 

Over the past two decades, Congress has severely curtailed the 

discretion of immigration judges to evaluate cases on an individual 

basis and grant relief to deserving immigrants and their families. 

Moreover, under current law, the Federal courts have also been 

stripped of their jurisdiction to review most deportation and agency 

decisions. Congress should restore judicial review and afford judges 

greater latitude in their deliberations, especially on issues of detention. 

It is my view that no individual who comes into ICE custody 

should be without access to counsel. If an individual cannot afford 

counsel, then the Government should provide an attorney for them. 

It is not in conformity with American values to detain someone in 

a remote facility, often in the desert, separated from their family, 

from medical care providers, under circumstances where it is virtually impossible for someone, especially from a different culture, 

a different language, to be able to obtain counsel. 

When I was in San Francisco, I had a compelling case that I 

heard involving a young woman from El Salvador. She was the 

mother of a U.S. citizen infant. She had been convicted of a socalled aggravated felony, namely, shoplifting. She had been shoplifting baby diapers for her infant. And when she came before me, 

I had to inform her that I had no power at all to consider any bond 

or her terms of custody. After a couple of continuances, she made 

the difficult decision to return with her infant to conditions of turmoil in El Salvador rather than fighting while in custody a case 

that she might well have been eligible to have won, either as an 

asylee or eventually as a lawful permanent resident. 

I would propose that anytime that ICE comes into contact with 

a migrant, if ICE wants to question them to determine that they 

are not lawfully in the United States, that ICE should question, 

ICE should issue charging documents, ICE should give a court 

date, and ICE should send them home so that they can continue 

to work, to feed their families, they can continue to support their 

community and our American tax base. 
12 

Another case that I heard when I was in San Francisco was that 

of an Iranian asylum applicant, a woman who had, unfortunately, 

been diagnosed with schizophrenia. And her schizophrenia had also 

led her to be involved with a couple of extremely minor shoplifting 

instances, which then qualified her as an aggravated felon. She 

was married to a U.S. citizen. Together they had two U.S. citizen 

teenaged children. But ICE detained her, and we heard her case 

to renew her asylum status over a period of several months. I 

granted her case for asylum, and then because ICE appealed my 

grant to the Board of Immigration Appeals, she continued in custody for another year until the Board of Immigration Appeals finally upheld my grant of asylum. She was removed from the support of her family and of her medical caregivers due to the extremity of the current situation of mandatory detention. 

Congress should restore fairness and flexibility to our system by 

expanding the authority of immigration judges to consider the circumstances of each case. Judges are drawn from the ranks of immigration professionals, those who have spent their careers working 

in Government as well as those who have advocated on the side of 

immigrants. They should be trusted to make the correct calls. 

For example, in fiscal year 2012, immigration judges completed 

380,000-some cases. Of those, only 26,000 cases were appealed. It 

seems that most parties to these proceedings are happy with the 

judges’ decisions. Our Government and ICE should also be happy 

to defer to the immigration judges on issues of discretion, especially 

where custody is concerned. 

Thank you. 

[The prepared statement of Judge Grussendorf appears as a submission for the record.] 

Senator COONS. Thank you very much, Professor Grussendorf. 

Next we turn to Professor Jan Ting, our first of two witnesses 

from the first State of Delaware. Professor Ting is a professor of 

law at the Temple University Beasley School of Law in Philadelphia. He joined the law faculty in 1977 and teaches in areas of citizenship, immigration law, and tax law. Professor Ting was Assistant Commissioner of the Immigration and Naturalization Service of 

the U.S. Department of Justice from 1990 to 1993. Professor Ting 

is also a senior fellow and board member at the Center for Immigration Studies. 

Professor Ting, please proceed. 

STATEMENT OF JAN C. TING, PROFESSOR OF LAW, TEMPLE 

UNIVERSITY BEASLEY SCHOOL OF LAW, PHILADELPHIA, 

PENNSYLVANIA 

Mr. TING. Thank you, Senator Coons, and I thank all the members of the Committee for the invitation to appear today, in particular Chairman Leahy and Ranking Member Grassley. 

I have submitted written testimony, and I would like to make 

three additional points in addition to the written testimony that I 

have already submitted. 

I want to talk about this access to counsel issue. I think there 

is a historic distinction between civil and criminal litigation. The 

United States has never provided at taxpayer expense legal representation in civil matters. On the other hand, as someone who 
13 

is in the business of training young lawyers, it would be very hard 

for me to oppose a properly labeled ‘‘Lawyers’ Full Employment Act 

of 2013.’’ If I were a sitting Member of Congress—and I tried once 

to become one—I would be wary of advocating taxpayer-funded 

lawyers for foreigners in civil litigation when, under our current 

practice, taxpayer-funded lawyers are not provided to United 

States citizens, even in high-stakes litigation over things like home 

foreclosure, child custody, or lost jobs. American citizens go into 

child custody battles with whatever legal representation they can 

afford. I think we have to think about American citizens first before providing—forcing them to pay for taxpayer-funded lawyers for 

non-citizens. 

I also want to talk about mandatory detention. It seems to me 

that the 1996 reforms to our immigration laws—and let me make 

the obvious point, that all of our immigration laws that we are 

talking about were enacted by the Congress of the United States 

for good and valid reasons at the time. And I think the mandatory 

detention provisions were enacted to ensure the appearance of 

aliens for hearings and for removal. And the whole purpose of detention in the immigration context is to ensure the expeditious 

hearing and removal of aliens who do not belong in the United 

States. So there is a reason for it. And it seems to me that when 

alternatives are proposed that result in increased non-appearances, 

the whole purpose of the immigration system is frustrated. I think 

the burden ought to be on proponents of alternatives to detention 

to demonstrate that enforcement of the laws will not, in fact, be delayed. 

I also want to say something about prosecutorial discretion in 

general. If prosecutorial discretion is based on limited resources, it 

ought to consist of priorities for prosecution without putting any 

lawful cases off limits for political or policy reasons. Again, I emphasize that the laws of the United States were enacted by the 

Congress for good and valid reasons. 

If prosecutorial discretion is based on backlogs in the immigration court, that, it seems to me, is a management issue for the executive branch. Administrative immigration judges were intended 

to expeditiously process immigration cases without burdening our 

Article III courts. The backlog that we confront today is a manifestation of failure to deter illegal immigration. Cases should not 

be delayed because of pending visa applications. They should be decided on the merits, and then ICE can decide whether discretion 

is warranted in deferring removal. That would be a proper exercise, 

it seems to me, of prosecutorial discretion. 

Let me say that both my parents were immigrants. Of course, we 

should respect and admire immigrants, but that is not the question. The question is, the fundamental question is: How many? 

Should we limit immigration or should we allow unlimited immigration, as we did for the first century of the Republic, or as Senator Rand Paul said yesterday, ‘‘If you want to come here and live 

and work, we will find a place for you.’’ That was an articulate 

statement of, I think, the open borders position. 

Our failure to make a choice between those two alternatives is 

at the root of our dilemma over immigration policy. On the one 

hand, we find it hard to accept unlimited immigration. But on the 
14 

other hand, we find it hard to say no to or to deport hard-working 

immigrants who remind us of our own ancestors just to maintain 

a numerical limit on immigration. But there is no third way. It is 

intellectually incoherent and indefensible to argue that we need to 

retain numerical limits on immigration but we do not have to enforce them, and that we can instead periodically grant amnesty to 

immigration law violators whenever they attain a sufficiently large 

number. 

The current U.S. immigration system is the most generous in the 

world. I want to make that point. We provide each year more green 

cards for legal permanent residents with a clear path to full citizenship than all the rest of the nations of the world combined. This 

is an immigration system worthy of American values. It needs to 

be defended, and the enforcement provisions of U.S. immigration 

law are essential to maintaining the statutory numerical limit on 

legal immigration and deterring would-be violators. Border enforcement alone is never going to be sufficient. 

People who violate our immigration laws engage in a cost/benefit 

analysis before they decide to violate our laws. If we want less of 

them coming to the United States, we have to raise the costs 

through more enforcement and lower the benefits by assuring removal from the United States. 

If we want more illegal immigration, then the way to do it is to 

lower the costs through discretionary prosecution and to increase 

the benefits through things like amnesty. That is the fundamental 

choice that we have to make, and it is our refusal to choose between a policy of unlimited immigration or limited immigration 

that is at the root of our dilemma today. We have to answer that 

question one way or another. Otherwise, we end up with a dysfunctional system which is not worthy of our American values. 

Thank you. 

[The prepared statement of Mr. Ting appears as a submission for 

the record.] 

Senator COONS. Thank you, Professor Ting. 

Our final witness today is also from the great State of Delaware. 

Pamela Stampp is an attorney at the Castro Law Firm, where she 

has practiced immigration law for the last decade. Her practice 

deals primarily with adjustment of status, consular processing, 

waiver applications, VAWA, and U-visa applications, removal defense, and I–9 compliance. Ms. Stampp also handles business immigration applications and is herself a native of Jamaica and a 

naturalized U.S. citizen since 2007. So she has experienced the 

U.S. immigration system both as an attorney and as a client. 

Ms. Stampp, please proceed. 

STATEMENT OF PAMELA A. STAMPP, MANAGING IMMIGRATION ATTORNEY, CASTRO LAW FIRM, WILMINGTON, DELAWARE 

Ms. STAMPP. Thank you, Senator Coons, Ranking Member Grassley, and other Committee members. It is indeed my privilege to 

share with you today some of the concerns regarding the due process challenges being faced by many undocumented immigrants who 

try to navigate their way through our complex immigration system. 

I currently manage the immigration law area of practice at The 
15 

Castro Firm in Delaware, and because of our firm’s commitment to 

the community, I have had the opportunity of assisting many undocumented immigrants. 

As Senator Coons so graciously acknowledged, I myself am an 

immigrant, and I had to contend with the issues on my path to citizenship of having access to counsel to guide me through this complex process, although not in an undocumented state. The need for 

representation by counsel is even more important in cases where 

an individual is placed in removal proceedings because the consequences can be far more dire than the normal civil proceedings. 

The need for counsel demonstrates the importance when we 

think of the court administrative time and, consequently, increased 

costs when immigration judges are required to spend additional 

time guiding pro se respondents through proceedings. But it should 

never be forgotten that the role of the immigration judge is not to 

represent the respondent. It is the role of counsel to ensure that 

all forms of available relief have been adequately explored, that all 

issues for proper consideration have been brought to the attention 

of the court and that the law has been correctly applied to the facts 

and circumstances of the particular respondent. The greater the access to counsel, the less the likelihood of exploitation of undocumented immigrants by ‘‘notarios’’ and ‘‘immigration consultants.’’ 

A framework really needs to be established to ensure that vulnerable groups—such as juveniles, VAWA, U-visa, or asylum candidates, or persons with mental disabilities—are identified at the 

earliest opportunity and provided with representation by counsel in 

their immigration matter. 

As an example, an undocumented immigrant was in an abusive 

relationship for a number of years during which she suffered from 

repeated acts of domestic violence. Having acquired only an elementary level education and been repeatedly warned by her abuser 

that if she told anyone, she would be deported, her situation only 

came to light when an act of physical violence against her in a public parking lot was actually observed by a patrolling police officer. 

The offender was charged, but had a friend not recommended that 

she contact our firm for assistance, she likely would never have 

learned of the possibility of a U-visa application being filed on her 

behalf. 

When it comes to the issue of custody determinations and mandatory determination, everyone placed in removal proceedings 

should have prompt access to a bond hearing with the immigration 

judge having full discretionary authority to make a determination 

based on all factors relevant to the grant of release on bond, such 

as flight risk, the respondents’ ties to the community, and the likelihood that he will pose a threat to the community, or threaten the 

interests of national security. 

I am, in fact, reminded of the case of one immigrant who arrived 

in the U.S. in 1999 but later fell out of status. In 2001, he started 

a business in order to support himself and his family. He made 

sure that this business was duly licensed and insured and paid 

taxes for every year it was operating. By 2011, he had, in fact, acquired two residential properties, was able to provide employment 

for two additional persons, was the sole financial supporter for his 

7-year-old U.S. citizen son, and had taxable earnings of over 
16 

$100,000 for the tax year of 2010. In 2011, however, he was detained and placed in removal proceedings. 

When he was detained, no bond application was entertained until 

a bond redetermination hearing was requested in immigration 

court. Bond was granted by the immigration judge, but only after 

he had spent 10 days incarcerated. For the sole operator of a small 

business, this is, in fact, detrimental. 

As indicated by my colleague Professor Grussendorf, immigration 

judges should be afforded broader discretionary powers to review 

the facts and arguments presented by both sides and to grant relief 

based on the merits. 

The prosecutorial discretion policy, for example, vests power solely in the hands of DHS, who are in reality the adverse party in immigration proceedings. Does this not amount to giving them the 

final determiners or arbiters? The ability of an immigration judge 

to exercise judicial discretion in such circumstances and arrive at 

a decision on the merits would go a long way toward ensuring the 

interests of justice are served. 

In the normal process of immigration matters, one of the ways 

in which you ascertain information to assist your cases through the 

discovery process is called a FOIA, a Freedom of Information Act 

request. Many immigration clients are unable to provide a clear 

and comprehensive or accurate record of their immigration history, 

despite the assistance of counsel. The current mechanism for determining this process of past immigration history, the FOIA request, 

has become time-consuming because of the lengthy delays in receiving the requested information. Even where the more expedited format is adopted because the immigrant is in removal proceedings, 

this process can still take months. 

This could easily be alleviated if there was an established procedure for ensuring that counsel representing an immigrant has access to the immigration and criminal records in the possession of 

DHS in the fashion of the normal adverse party discovery process. 

In conclusion, changes in the law to afford access to counsel, 

prompt bond hearings for all, greater judicial discretion, and a 

more efficient discovery process would, in my view, certainly contribute to an immigration system worthy of American values. 

Thank you. 

[The prepared statement of Ms. Stampp appears as a submission 

for the record.] 

Senator COONS. Thank you, Ms. Stampp. 

I would like to thank all five of our witnesses today. I have a 

wide range of questions I would like to ask you in response to your 

testimony. If you will forgive me, however, we are between the second and third vote, and in the absence of other members, I am 

going to recess this hearing for about 20 minutes while I go to the 

floor, cast two votes, and then return, and hopefully we will have 

a chance for some broad questioning then. 

Again, my apologies, but I have to go vote. Thank you. This hearing is in recess. 

[Recess at 2:56 p.m. to 3:27 p.m.] 

Senator COONS. I would like to call this meeting back to order. 

I again just want to express my appreciation to today’s panel of 
17 

witnesses for your patience with the many votes going on over in 

the Capitol. 

Mr. Arulanantham, if I might start with you, in preparing for 

this hearing, I was surprised to learn that Congress has, in fact, 

mandated each year since, I think, 2010 that DHS maintain over 

34,000 detention beds, whether DHS or whether ICE needs them 

or not, and this is, if I have my numbers right, more than 1,000 

over the requested bed level for this year. 

How do legislatively mandated bed quotas drive ICE policy with 

respect to bond or parole recommendations, in your view? 

Mr. ARULANANTHAM. Well, there is no question that the bed 

mandate does drive ICE policy, and I think in a very irrational 

way, because as I was mentioning in the testimony and as you can 

see in the appendix to my written testimony, there are thousands 

of people who are not a danger, not a flight risk, whom immigration judges would release on bond if they could get a hearing that 

ICE detains under the mandatory detention laws. I think there is 

an obvious relationship between that bed quota, which requires a 

particular level, even if detention is not otherwise necessary, and 

that mandatory detention law which requires the detention of people who, if they got a hearing, if they got their day in court, would 

show that they do not have to be locked up. 

I think particularly in this time, as well, Senator, it does not 

make a lot of fiscal sense, and we know alternatives to detention, 

ICE’s own data as well as the data from the companies that do intensive supervision assistance, show that now we have very sophisticated technologies that will allow for a very high appearance rate. 

Well over 90 percent is reported routinely, 99 percent in southern 

California where I practice, 99 percent in the BI, which is the company that does this, in their national statistics. Those are 99-percent appearance rates at court hearings for people who are released 

but kept on intensive supervision. 

Senator COONS. Would you just briefly explain what technologies 

are today available for intensive supervision that may not have 

been available when the provisions were passed and when these requirements were put in place? And just say something about, given 

the bed quota, how widespread are these alternatives? 

Mr. ARULANANTHAM. Well, remember, the provisions were passed 

in 1996, and they were based on studies that were done before 

then. At that time the bed capacity was far lower, so ICE released—actually, INS, excuse me, back then, released people without doing an analysis of whether they were a flight risk just because there was not space to hold them. So at that time, when 

those findings were made, there was not any kind of individualized, 

you know, reticulated way to analyze and determine who was a 

flight risk. We did not have at that time, obviously, at least the 

widespread availability of GPS monitoring devices that can be put 

on electronic collars that you can put on people’s ankles. We did 

not have the sophisticated telephone reporting systems that we 

have today. 

So there is a great variety of technologies that produce these 

high appearance rates that were never tested back in the mid1990s when the statute was previously passed. 
18 

Senator COONS. And how widely are those currently being deployed or demonstrated? 

Mr. ARULANANTHAM. They are being deployed all across the 

country, Senator, but the problem is under ICE’s interpretation— 

that is not the problem. The problem is under ICE’s interpretation 

of the law, they interpret custody in Section 1226(c), the mandatory 

detention statute, to mean locked up. So they do not allow the release and alternatives to detention of people who are required to 

be detained under that law. So you have people who have family 

members, maybe people who were released on the criminal case— 

they had a criminal case, they were released on bond, they appeared for their plea hearing or trial, then they were convicted, 

they go to immigration, and they cannot ask for bond. And that 

does not make any sense. 

Senator COONS. If I might, Ms. Stampp, just a follow-up to that, 

in your experience when you encounter a defendant, when you represent someone, how often are they aware of the rights they may 

or may not have under law? And then, specifically, what sorts of 

defenses to removal of an immigrant who has no access to counsel 

and is not particularly informed about the process and how it is 

going to work, what might they raise but that they in your experience often fail to raise because they are unaware of their—— 

Ms. STAMPP. Senator Coons, in my experience, most times they 

are not aware of the legal options available to them. Most of the 

undocumented immigrants, in particular, they have no concept of 

what legal rights they have. In fact, many feel that if they encounter law enforcement in any form or fashion, they will be placed in 

deportation proceedings. 

They may have in many instances a legitimate claim for remedies such as asylum, cancellation of removal in certain circumstances. They may have the ability to apply for protection 

under the Convention Against Torture. They may also be VAWA, 

Violence Against Women Act, appropriate candidates or U-visa, victim of crimes, applicants as well. 

But if they have not got the information to inform them that 

these are options available to them, it may never be raised. 

Senator COONS. And, Ms. Stampp, if they do not have access to 

counsel—and in a majority of cases they do not—then where do immigrants in these circumstances turn? Where do they get legal advice? You mentioned in your spoken testimony these ‘‘notarios.’’ 

Say a little bit more, if you would, about their role, their cost, their 

effectiveness in this process. 

Ms. STAMPP. Indeed, Senator, the ‘‘notarios,’’ who are not attorneys, they are, in fact, many times operating under the guise of immigration consultants, so-called, but they are indeed dispensing 

legal advice on which many applicants or petitioners will act to 

their detriment. They will move forward with applications which 

are either unsupported or not properly substantiated on the advice 

of these notarios and put themselves in a far worse situation than 

if they had been afforded the opportunity to get proper advice from 

counsel. 

In some communities, because of the nature of how these 

‘‘notarios’’ are viewed, especially, if I may indicate, in the Hispanic 

community, which I am very close to, they are seen as a source of 
19 

information, as a resource to go to, because they do not see any 

other options available to them. 

Senator COONS. Professor, I would be interested if you would 

comment on this, but also you said in your testimony that it is 

often the case that immigrants have spent weeks, possibly months, 

in detention before appearing before a judge for the first time. 

Now, that seems like a long time to spend in detention before seeing a judge. Can you tell me why individuals typically spend such 

a long time in detention before they see a judge for a bond hearing? 

Mr. TING. Well, you know, I think Judge Grussendorf would be 

more of an expert on that than I. I think the usual reason is because there is a tremendous backlog of cases that stands in the 

way, and they are in detention to ensure their appearance. You 

know, prior to 1996, we had a very bad record of people showing 

up for their immigration hearings if they were not, in fact, detained. We have a very good record of their appearing if they are 

detained prior to the hearing. So, you know, the detention, the sole 

purpose is to facilitate the congressionally designed administrative 

removal process. 

And the issue of legal counsel, I would just emphasize that, in 

general, people cannot be removed from the United States without 

a decision of an immigration judge. And immigration judges are 

given broad discretion in how they conduct their hearings. They 

understand the law, and they are free to gather information, to interrogate witnesses, including the alien, and their job is to mete 

out a fair interpretation of the immigration laws case by case. And 

I think the administrative system is designed through immigration 

judges to ensure that there is someone there who understands the 

immigration law and is responsible for seeing that it is properly applied to the individual alien. 

Senator COONS. Professor Ting, if I might, before I turn to Judge 

and Professor Grussendorf, in terms of a cost/benefit analysis, I 

take your point about 1996. But as Mr. Arulanantham suggested, 

with modern technology—GPS, ankle bracelets—that really were 

not available broadly, did not exist back in 1996, there are districts 

that are now showing—regions that are showing 99 percent. Would 

it make sense if there are instances where there is virtually no risk 

to society and the flight or escape risk is so low to allow supervised 

detention rather than physical detention? 

Mr. TING. Yes, you know, I am certainly open to pilot projects to 

demonstrate that there is no loss of appearances as a result of 

these alternate technologies. I think a lot of people are skeptical 

about these alternate technologies, and I think to the extent that 

you weaken the enforcement function, you add to the dysfunction 

of our immigration system generally, at the root of which, as I have 

said in my written statement, is our failure to make a clear decision on whether we favor numerically limited immigration, which 

requires enforcement, or unlimited immigration, as I think some 

Members of Congress do, which does not require enforcement. And 

if we decide, oh, we are for numerical limits, then you have to enforce those limits, and you have to find a way to do so. And that 

is why we have the system in place that we do. 

Senator COONS. Understood. 
20 

Professor Grussendorf, if I might, I have relatively little time 

until the next vote, which has been called, if you could just comment on the length of time before folks, typically immigrants, appear before a judge and have a chance at a bond hearing, the impact of the consequences of this process where we are using detention and holding people for long periods of time without them being 

aware of their rights or their alternatives, and then what you think 

are the best paths forward. Are detainees entitled to request a 

bond hearing? Should we accelerate bond hearings? 

Judge GRUSSENDORF. Thank you, Senator. First of all, I would 

say that it varies widely from jurisdiction to jurisdiction, but certainly it is not unusual for a migrant to be detained for a couple 

of weeks before they are even able to be brought before an immigration judge due to the busy dockets of the immigration courts. 

Now, as far as any possible solution, one solution is, of course, 

to do away with the wide-ranging laundry list of grounds for socalled mandatory detention to roll back on the so-called aggravated 

felonies which, if someone is convicted of that which qualifies as an 

aggravated felony, then they are automatically subject to mandatory detention. 

Most of these so-called aggravated felonies, they are not crimes 

that involved dangerousness or any type of vile nature, and in my 

opinion and that of many of our colleagues, individuals could be released into the community, especially with alternatives to detention 

methods, and to assure their return, and that there would not be 

then such a backlog on the custody calendar. 

Now, as far as providing counsel to those who are detained, I 

would like to draw an analogy. It is actually the case that right 

now there are many so-called illegal migrants who do have Government-appointed counsel, and that is mainly at the border when individuals are arrested for illegal entry and illegal re-entry under 8 

U.S.C. 1324, 1325, and 1326. And the situation there is that the 

Federal public defenders, for example, in San Diego, they do represent the individuals. They are not involved in dilatary tactics trying to slow down the system at all. In fact, the district court judges 

and the U.S. Attorney’s Offices, they recognize that without the 

Federal public defenders being there to represent such a volume of 

criminal detainees, the entire system would break down. 

Now, I would submit that currently the immigration detention 

system has broken down because the detainees do not have attorneys who can help facilitate their cases. In a situation where nobody has a form of relief where it might be best for them to take 

an order to return, an attorney can explain that to them and they 

can understand, ‘‘Well, there is no reason for me to languish in detention another couple weeks or months.’’ 

Senator COONS. Let me ask you a quick followup, then, if I 

might. I referenced in my opening the Legal Orientation Program, 

which, if I understand right, can reduce costs by reducing the 

amount of time it takes to resolve a case, because immigrants, once 

more aware of their options and their rights, will either choose to 

accept deportation, recognizing they have no other likely path, or 

make a successful claim. 
21 

Can you tell me a little bit more about what the LOP does or 

does not do and how it affects timeliness and cost of resolution of 

cases? 

Judge GRUSSENDORF. Well, yes, sir. I was impressed when the 

Executive Office for Immigration Review first initiated that program and supported organizations in the community. The problem 

with that program, though, is that we are still talking about trying 

to advise individuals of their rights, usually en masse, that there 

is no privacy, there is no opportunity to sit down with an individual and really spend any time with them to assess their individual case, to assist them in pulling together documents and witnesses, and so on. It is really more of an en masse type situation, 

and I am certain that many of the respondents, especially when 

you are dealing through a second language, are still unaware of 

what their options are. 

Senator COONS. Mr. Arulanantham, we are marking the 50th anniversary of Gideon v. Wainwright and the recognized right to 

counsel for American citizens in the criminal process. Immigration 

detention has withstood challenges because it is deemed to be civil, 

not criminal. 

Could you comment on that and on what aspects of it really seem 

or have the consequences of a criminal process and what the courts 

have said about the due process rights of detainees? And describe, 

if you would, some of the alternatives. Professor Ting was saying 

he could see his way toward a demonstration program. What are 

the current demonstration programs? How have they demonstrated 

cost-effectiveness? And in what ways might they have improved the 

process and respected due process? 

Mr. ARULANANTHAM. Well, it is not quite right to say that there 

is only a right to appointed counsel in criminal cases. The Supreme 

Court recognized a right to appointed counsel in every juvenile delinquency case, even though that is a form of civil proceeding, not 

a criminal proceeding. The Supreme Court has also recognized that 

counsel may be necessary in some cases involving parental termination in the Lasser decision, in civil contempt proceedings in the 

Turner v. Rogers decision, and in other contexts. In fact, the overwhelming majority of States—I think it is 47—provide counsel as 

a matter of statute to people in parental termination proceedings. 

Now, if you think about it, many deportation cases are parental 

termination proceedings. Many of them are. And even ones that are 

not, people who could be tortured or persecuted if returned, if their 

case is decided the wrong way, I mean, the stakes in immigration 

cases are often greater than they are in criminal cases, as the Supreme Court has recognized in the Padilla decision. 

So deportation is unique. It cannot be understood—you know, 

you cannot pigeonhole it and compare it simply to one form of other 

kind of proceeding or another. I think the real question is, you 

know, when you have a person who has a serious mental illness 

and you have got the DHS represented by a trained prosecutor who 

is trying to get that person deported, is it fair to have that person 

make all the arguments that they have to make for themselves? Is 

it fair for a child to be put in that position? 

All we are recommending, Senator, is that the Attorney General 

have the option—that we require counsel for the people who are 
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most vulnerable who need it, like children and people with mental 

disabilities, and then that the Attorney General have the ability on 

a case-by-case basis to determine whether counsel is necessary in 

other situations, which is the same thing that the law requires, 

that the Due Process Clause requires, in parental termination 

cases, in civil contempt cases, and other contexts. 

And you had asked about pilots. I think the best way to assess 

cost savings in the appointed counsel context, because we have not, 

unfortunately, had pilots with full-blown appointed counsel—we 

are trying, but they have not been authorized by Congress—is by 

looking at LOP. And you can see in the Legal Orientation Program 

even with that, as Judge Grussendorf was saying, that process of 

providing information, we see in EOIR’s statistics report substantially decreased detention times because of cost savings in that context. 

Now, if you think about what that means, every time a judge 

puts over a case for a month in order to try and find a lawyer to 

represent a mentally ill person—and I see this every day in our 

litigation on that issue—that is $50,000. It is $50,000 that you just 

spent by taking 30 extra days while you are begging people to find 

lawyers. The same is true for children. The same is true for prompt 

bond hearings. And think about how many people you could represent. I mean, depending on where you are in the country, $50,000 

will pay for almost a whole lawyer for a year. 

Senator COONS. If you will forgive me, thank you very much, Mr. 

Arulanantham, for that statement. 

I want to thank all the witnesses. I apologize. I have just a few 

minutes left to get back to the floor on a vote that is live. 

I am going to keep the record open on this hearing for a week 

for statements; if there are any closing statements witnesses would 

like to make for the record, issues we did not get to today, I apologize; if there are members who were not able to attend and who 

have questions for the record that they might like the witnesses to 

answer. 

Congress has a lot of significant issues to work through if we are 

to be successful in reaching an appropriate compromise and improvements, enduring improvements, to our immigration system, 

and it is my hope that we will not lose sight of some of the due 

process concerns raised here today and that we will find a way to 

come together and make significant, sustained improvements to 

America’s immigration system. 

I want to thank all five witnesses again for their patience today 

with the difficulties of our schedule, and this hearing is hereby adjourned. 

[Whereupon, at 3:48 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 
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Æ