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STRENGTHEN AND FORTIFY ENFORCEMENT 

(SAFE) ACT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

ON

H.R. 2278 

JUNE 13, 2013 

Serial No. 113–36 

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 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

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 

JUNE 13, 2013 

Page 

OPENING STATEMENTS 

The Honorable Trey Gowdy, a Representative in Congress from the State 

of South Carolina, and Member, 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 

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

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

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

of California, and Member, Committee on the Judiciary ................................. 6 

WITNESSES 

The Honorable Paul Babeu, Sheriff of Pinal County, Florence, AZ 

Oral Testimony ..................................................................................................... 10 

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

Chris Crane, President, National Immigration and Customs Enforcement 

Council 118, American Federation of Government Employees 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 18 

The Honorable Sam S. Page, Sheriff of Rockingham County, Wentworth, 

North Carolina 

Oral Testimony ..................................................................................................... 25 

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

Jamiel Shaw, Sr., Committee to pass Jamiel’S Law, Los Angeles, CA 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

The Honorable Randy C. Krantz, Commonwealth’s Attorney, Bedford, VA 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 38 

Sabine A. Durden, mother of Dominic Durden, Moreno Valley, CA 

Oral Testimony ..................................................................................................... 42 

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

Karen C. Tumlin, Managing Attorney, National Immigration Law Center 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 55 

Clarissa Martinez-De-Castro, Director of Civic Engagement and Immigration, 

National Council of La Raza 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 67 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 85

Material submitted by the Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Committee on the Judiciary ....... 170 
(IV) 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

H.R. 2278, the ‘‘Strengthen and Fortify Enforcement (SAFE) Act’’ is not reprinted 

in this hearing record but is on file with the Committee and can be accessed at: 

http://www.gpo.gov/fdsys/pkg/BILLS-113hr2278ih/pdf/BILLS-113hr2278ih.pdf 
(1) 

*The bill, H.R. 2278, the ‘‘Strengthen and Fortify Enforcement (SAFE) Act,’’ can be accessed 

at http://www.gpo.gov/fdsys/pkg/BILLS-113hr2278ih/pdf/BILLS-113hr2278ih.pdf 

STRENGTHEN AND FORTIFY ENFORCEMENT 

(SAFE) ACT 

THURSDAY, JUNE 13, 2013 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 2:44 p.m., in room 2141, 

Rayburn House Office Building, the Honorable Trey Gowdy presiding. 

Present: Representatives Goodlatte, Coble, Smith of Texas, 

Chabot, Bachus, King, Jordan, Poe, Marino, Gowdy, Labrador, 

Holding, Collins, DeSantis, Smith of Missouri, Conyers, Scott, 

Watt, Lofgren, Johnson, Pierluisi, Gutierrez, Richmond, DelBene, 

and Garcia. 

Staff Present: Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff and Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Dimple Shah, 

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

Mr. GOWDY. Good afternoon. The Judiciary Committee will come 

to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. We welcome everyone to this 

afternoon’s hearing on H.R. 2278, the ‘‘Strengthen and Fortify Enforcement (SAFE) Act.’’* 

I will now recognize myself for an opening statement, and then 

the gentleman from Michigan. 

The 19 hijackers involved in the 9/11, 2001, terrorist attacks applied for 23 visas and obtained 22. The terrorists began the process 

of obtaining visas almost 21⁄2 years before the attack. More recently, a legal permanent resident and naturalized U.S. citizen injured and murdered multiple Americans in Boston. 

Abel Arango, a Cuban national, served time in prison for armed 

robbery. He was released from prison in 2004 and was supposed to 

be deported. However, Cuba wouldn’t take him back. DHS had to 

release him because of the Supreme Court’s decision in Zavidas v. 

Davis. He shot Fort Myers police officer Andrew Widman in the 

face. Officer Widman never even had the opportunity to draw his 

weapon. Husband and father of three died at the scene. 
2 

Sixteen-year-old Ashton Cline-McMurray, an American citizen 

who suffered from cerebral palsy, was attacked by 14 gang members while walking home from a football game in Suffolk County 

outside of Boston. According to his mother, Sandra Hutchinson, 

they beat him with rungs out of stairs, they beat him with a golf 

club, they stabbed him through his heart, and finally through his 

lungs. He, too, really never had a chance. And Ashton’s killers pled 

guilty to lesser charges for manslaughter in the second degree murder. One of the defendants, Loeun Heng, was recently released 

back onto the streets by the Massachusetts Parole Board. Heng, 

like thousands of other criminal aliens in recent years, initially 

could not be deported because his home country refused to take 

him back—again because of the Supreme Court’s decision in 

Zavidas v. Davis. Heng wound up back on the streets living here 

in the United States. 

Recent events like these underscore the need for Congress to act, 

and compel this and future Administrations to provide for public 

safety first and foremost. We must strengthen and improve our immigration enforcement system not just at the border, but within 

the interior of the United States. 

The SAFE Act was introduced to remedy this current unacceptable state of affairs. The bill, in my judgement, will keep us safe 

in numerous ways. First, it fulfills the intent of the Homeland Security Act of 2002, which authorized the placement of Department 

of Homeland Security Visa Security Units at highest-risk U.S. consular posts. This was an effort to address lapses in the current system, increase scrutiny of visa issuance, and prevent terrorists from 

gaining access to the United States. 

Unfortunately, since 2002 neither the State Department nor 

DHS has put a high priority on the establishment of Visa Security 

Units. Just recently, State Department denied DHS’ request to set 

up a post in Turkey. Visa Security Units exist in only 14 countries. 

Meanwhile, close to 50 countries have been designated as highest 

risk. 

In addition to making it harder for terrorists to enter, the SAFE 

Act allows U.S. Officials to more easily remove terrorists and other 

national security threats. The bill closes loopholes and allows terrorists to be removed from American soil without threatening the 

disclosure of intelligence sources and methods. Of note, the bill 

bars foreign terrorists or immigrants who threaten national security from receiving immigration benefits such as naturalization and 

discretionary relief from removal. The bill also prohibits immigration benefits from being provided to immigrants until a background 

check is successfully passed. 

The SAFE Act also addresses criminal threats. According to recent data provided by Immigration and Customs Enforcement, 

nearly 4,000 dangerous immigrant criminals have been released in 

just about every year since 2008 because the Zavidas decision requires DHS to release all aliens with final orders of removal where 

their native country refuses to take them back. Nearly 1,700 convicted criminals have been released thus far this year alone. This 

is unacceptable and is not consistent with the government’s preeminent obligation to provide for public safety. H.R. 2278 provides 

the statutory basis for DHS to detain, as long as necessary, speci-
3 

fied dangerous aliens under orders of removal who cannot be removed. This provision is based on legislation that former Chairman 

Lamar Smith previously introduced. 

In addition to these provisions, the SAFE Act ensures aliens convicted of sexual abuse of children, manslaughter, two or more convictions for driving under influence, or failing to register as a child 

sex offender or any kind of sex offender are removable. It expands 

the range of conduct for which an alien can be removed pertaining 

to espionage and exploiting sensitive information. 

The bill makes alien members of violent criminal street gangs removable. This provision is based on legislation introduced previously by the gentleman from Virginia, Randy Forbes. The SAFE 

Act also provides ICE agents with the tools they need do their job 

and the protections needed to keep them safe. 

So I look forward to today’s hearing. I especially look forward to 

hearing the testimony of today’s witnesses whose family members 

were taken from them because of our current system’s failure at 

multiple levels. Public safety and national security must be the 

twin overarching pillars of any immigration reform system. 

And with that, I would recognize the gentleman from Michigan, 

the Ranking Member of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Gowdy. 

We gather here for the tenth hearing on immigration, and I don’t 

say that critically, because this subject is important. And I join in 

welcoming all two, four, six, eight witnesses, but I particularly single out Ms. Tumlin, attorney Tumlin, and the representative from 

the National Council of La Raza, Clarissa Martinez-De-Castro. 

Welcome. 

We’ve held legislative hearings on E-Verify, we’ve had hearings 

on agriculture, the agricultural guest worker bill, and today’s hearing is an enforcement-only bill. Now, I respect the efforts of my colleagues that are putting such emphasis on enforcement. But H.R. 

2278 is not the right bill for this moment, and I will explain what 

I mean by that, because it’s coming one day before the first hearing 

of our House Judiciary bipartisan task force on over-criminalization. And here’s what we’re doing the day before we have the task 

force meeting. 

It’s alarming that this bill would turn millions of undocumented 

immigrants into criminals overnight. It’s not only terrible politics, 

but it’s inhumane policy as well. I was hoping that we had turned 

a corner on this flawed approach because we’ve tried it before. 

Moreover the bill’s complete and unchecked delegation of immigration enforcement authority to local police, State enforcement 

agencies will endanger public safety, it will increase racial 

profiling, and infringe basic due process rights. 

Put simply, it’s a dangerous approach to a complicated problem 

and it will harm communities all around the country. This bill 

makes it a crime, potentially a felony, to be an undocumented immigrant in this country. And this is not the first time that there 

have been attempts to turn millions of undocumented immigrants 

into criminals. The last time was in 2005, bill number H.R. 4437, 

and it spurred massive public protests around the country. This bill 

will do the same thing, but in a more subtle way, and by granting 

States and localities total authority to pass their own immigration 
4 

*The information referred to was not available at the time this hearing record was finalized, 

September 30, 2013. 

laws, something that even the bill I referred to in 2005 didn’t do, 

it will put undocumented immigrants all around the country in 

even greater danger. 

The bill simply turns every police officer in the country into an 

immigration agent. In the eyes of many communities that means 

the public safety mission will become a distant second. 

Let’s be clear, this bill will make our communities less safe. 

Study after study has shown that when police become immigration 

agents, crime victims and witnesses don’t come forward, crimes go 

unreported and unresolved and unsolved, and public safety decreases. 

We know that this legislation would lead to widespread racial 

profiling and unconstitutional arrests of U.S. citizens and immigrants alike. How do we know this? Because we’ve seen it in jurisdiction after jurisdiction around the country that have entered into 

these 287(g) agreements with the Department of Homeland Security. So what does the bill do? Rather than improve on current 

practice and require more oversight over these 287(g) agreements, 

it grants total enforcement authority with no checks at all. 

And so I will put the rest of my statement in the record. I thank 

the Chairman for his indulgence in giving me additional time.* 

Mr. GOWDY. I thank the gentleman from Michigan. 

The Chair would now recognize the gentleman from Virginia, the 

Chairman of the full Committee, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I apologize for not 

being here in a timely fashion myself, but we are hard at work on 

this immigration issue, in many conversations, and that detained 

me from getting back here. 

Successful immigration reform must address effective interior enforcement. This is an integral piece of the puzzle. We can’t just be 

fixated on securing the border, which undoubtedly is an issue of 

paramount concern. We must focus on interior enforcement, or 

more precisely, what to do with unlawful immigrants who make it 

past the border and legal immigrants who violate the terms of their 

visas and thus become unlawfully present in the United States. 

Any real immigration reform effort must guarantee that our laws 

be enforced following a legalization program. This is required in 

order to ensure that future generations do not have to deal with 

once again legalizing millions more people. Interior enforcement of 

our immigration laws is critical to the success of our immigration 

system. 

Unfortunately, the Senate bill actually weakens interior enforcement in many areas or is simply ineffectual. The Senate bill allows 

aggravated felons who are currently subject to mandatory detention to be released in the care of advocacy organizations. The Senate bill provides an unworkable framework for deporting gang 

members. The Senate bill directs DHS to ignore criminal convictions under State laws for crimes such as human smuggling, harboring, trafficking, and gang crimes when adjudicating applications 

for legalization. 
5 

Today we turn to H.R. 2278, the immigration enforcement bill introduced by Trey Gowdy, Chairman of Subcommittee on Immigration and Border Security. Mr. Gowdy’s legislation actually 

strengthens Federal immigration enforcement. One reason why our 

immigration system is broken today is because the present and 

past Administrations have largely ignored the enforcement of our 

immigration laws. If we want to avoid the mistakes of the past we 

cannot allow the President to continue shutting down Federal immigration enforcement efforts unilaterally. The SAFE Act will not 

permit that to happen. 

I remain concerned that whatever enforcement provisions Congress passes will be subject to implementation by the current Administration, which fails to enforce the laws already on the books. 

DHS has released thousands of illegal and criminal immigrant detainees while providing ever-changing numbers to Congress regarding the same. DHS is forbidding ICE officers from enforcing the 

laws they are bound to uphold. A Federal judge has already ruled 

DHS’ actions are likely in violation of Federal law. DHS is placing 

whole classes of unlawful immigrants in enforcement-free zones. 

DHS claims to be removing more aliens than any other Administration, but has to generate bogus numbers in order to do so. 

Ultimately, the American people have little trust that an Administration which has not enforced the law in the past will do so in 

the future. That is why real immigration reform needs to have 

mechanisms to ensure that the President cannot simply turn off 

the switch on immigration enforcement. 

Mr. Gowdy’s bill contains such a mechanism. Not only does the 

bill strengthen immigration enforcement by giving the Federal 

Government the tools it needs to enforce our laws, but it also ensures that where the Federal Government fails to act States can 

pick up the slack. Pursuant to the SAFE Act, States and localities 

are provided with specific congressional authorization to assist in 

the enforcement of Federal immigration law. States and localities 

can also enact and enforce their own immigration laws as long as 

they are consistent with Federal law. 

The SAFE Act shows how to avoid the mistakes of the past with 

regard to immigration law enforcement, especially the 1986 immigration law. The bill expands the types of serious criminal activity 

for which we can remove aliens, including criminal gang membership, drunk driving, manslaughter, rape, and failure to register as 

a sex offender. The bill ensures these individuals cannot take advantage of our generous immigration laws. 

In addition to criminal provisions, the bill strengthens Federal 

law to make it more difficult for foreign terrorists and other foreign 

nationals who pose national security concerns to enter and remain 

in the United States. Of note, the bill bars foreign terrorists or 

aliens who threaten national security from receiving immigration 

benefits, such as naturalization and discretionary relief from removal. Such provisions are particularly relevant following the Boston bombing, where naturalized aliens killed, maimed, and injured 

Americans. Under the bill, no immigration benefits can be provided 

to immigrants until all required background and security checks 

are completed, another item that the Senate bill fails to include. 
6 

Rather, the Senate bill actually authorizes the Secretary to waive 

background checks. 

Mr. Gowdy’s bill also improves our Nation’s first line of defense, 

the visa issuance process. Additionally, the SAFE Act lives up to 

its name and provides much-needed assistance to help U.S. Immigration and Customs Enforcement officers carry out their jobs of 

enforcing Federal immigration laws while keeping them safe. Not 

only does the bill allow local law enforcement officials already 

working in their communities to pitch in to enforce our laws, but 

the bill also strengthens national security and protects our communities from those who wish to cause us harm. The SAFE Act provides a robust interior enforcement strategy that will maintain the 

integrity of our system for the long term. 

I look forward to hearing from all of our witnesses today, and I 

thank Chairman Gowdy for introducing this game-changing legislation. 

Mr. GOWDY. Thank the gentleman from Virginia. 

The Chair would recognize the gentlelady from California, the 

Ranking Member of the Subcommittee, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Over the past 6 months this Committee has engaged in a series 

of informative and largely civil discussions regarding immigration 

law. With few exceptions, each of the nine immigration hearings 

thus far have shown that Members of this Committee recognize 

that our immigration system is broken and that it must be fixed 

for America’s businesses and families. Most of the Members have 

recognized at one time or another that deporting 11 million undocumented immigrants is not realistic and it would tear parents 

away from children, separate spouses, leave gaping holes in businesses and communities across the country. 

That’s why today’s hearing on H.R. 2278 is so disappointing. Portions of the bill should be familiar to the Committee because they 

draw heavily upon bills that we considered in the 112th Congress. 

Provisions in the bill, for example, would allow people to be detained indefinitely, perhaps permanently, as well as deported based 

on nothing but the discretionary decision of the Secretary of Homeland Security without due process. I am confident that some of this 

language would never survive constitutional scrutiny. 

The bill troubles me more, however, because of how similar it is 

to a bill we considered in the 109th Congress, H.R. 4437. This bill 

contains many provisions from that bill, including provisions that 

essentially turn all undocumented immigrants in the country, 

whether they crossed the border or overstayed a visa, into criminals and that say that every day they stay in the U.S. they continue to commit a crime. Under this bill, every day an undocumented father or mother stays in this country to feed and care for 

a child he or she would be committing a crime. Under this bill, 

their family members may be committing criminal acts simply for 

living with them or driving them to the doctor. 

This bill then goes further than H.R. 4437 by unleashing the 

States to enact similar laws and by authorizing State and local officers across the country to enforce immigration laws. Every beat cop 

would have the power to apprehend, arrest, and detain a person 
7 

based on mere suspicion that the person might be unlawfully here, 

and the States could put them in jail simply for being here. 

It’s impossible to read Title 1 without thinking of all the lessons 

we have learned in recent years about what happens when local police officers are turned into Federal immigration agents. We now 

know that entrusting immigration enforcement to local police damages communities policing practices and leaves communities less 

safe. That’s because it breeds distrust in the community from U.S. 

citizens, legal residents, and undocumented persons alike. 

For years we’ve heard this from major organizations such as the 

Police Foundation, the International Association of Chiefs of Police, 

and the Major Cities Chiefs Association. Salt Lake City Police 

Chief Chris Burbank testified at the hearing last year that placing 

local law enforcement officers in the position of immigration agents 

undermines the trust and cooperation essential to successful community-oriented policing. 

Recently we heard it from a survey of Latinos themselves. Fortyfive percent of those surveyed said they are now less likely to contact the police if they are the victim of a crime out of fear that officers will inquire about their immigration status or the immigration 

status of people they know. Seven out of 10 respondents who are 

undocumented said the same thing. 

When victims of crime and people who witness crime are afraid 

to contact the police, crimes go unsolved. When crimes go unsolved, 

communities lose faith in the ability of police to keep them safe. 

Rather than making our communities safer, something that the 

bill’s title purports to do, this bill would decrease public safety. 

We also now know that placing immigration enforcement authority in the hands of States and localities results in unconstitutional 

racial profiling and prolonged unlawful detention. The poster child 

for this bad behavior is Maricopa County Joe Arpaio, the self-styled 

toughest sheriff in America. Just last month a Federal judge ruled 

that Arpaio’s office engaged in a pattern of unconstitutional racial 

profiling and unlawful detentions while participating in the 287(g) 

agreement with the Federal Government and in the enforcement of 

Arizona’s owns immigration laws. 

And Arpaio is not alone. Last year the Justice Department concluded that Alamance County Sheriff and his deputies in North 

Carolina engaged in routine discrimination against Latinos, which 

included illegal stops, detentions, and arrests without probable 

cause. The Justice Department also entered into settlement agreements with East Haven, Connecticut, following an investigation 

into widespread racial discrimination and abuse against Latino 

residents. The case also involved the Federal criminal arrest of police officers on charges such as excessive force, false arrest, obstruction, and conspiracy. 

Immigration law is complex. Even Federal immigration officers 

highly trained and with decades of experience in immigration law 

sometimes make mistakes leading to the detention and removal of 

U.S. citizens and lawful permanent residents. Imagine what will 

happen when we turn over this power to people who can’t possibly 

understand the complexities of immigration laws, such as the rules 

surrounding automatic acquisition of U.S. citizens, derivative citizenship, extensions of stay pending adjudications of petitions and 
8 

applications, withholding of removal, and the list goes on. This bill 

turns a blind eye to these problems, and that is a gross understatement. 

We all share the goal of ensuring that immigration laws are enforced. Surely we can do improvements. But this system is utterly 

broken and it can’t be fully enforced without devastating our economy, our businesses, our families, and our communities. The approach this bill takes is dangerous and it’s wrong, and I hope that 

today’s hearing is not a sign of the direction in which this Committee is heading, and I yield back. 

Mr. GOODLATTE [presiding]. We thank the gentlewoman for her 

statement. 

All other Members’ opening statements will be made a part of 

the record. And we now welcome our panel today. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you very much. 

Let the record reflect that all of the witnesses responded in the 

affirmative. 

And please be seated. 

Sheriff Paul Babeu is an elected official and the chief law enforcement officer of Pinal County, Arizona. Sheriff Babeu has 

served as the president of the Arizona Sheriff’s Association and 

was named National Sheriff of the Year in 2011 by the National 

Sheriffs’ Association. Additionally, Sheriff Babeu served his country 

in the National Guard for 20 years. During that time he served a 

tour in Iraq, as well as a deployment in Arizona as part of Operation Jump Start. In 2006 and 2007 he worked as the commander 

of Task Force Yuma supporting the United States Border Patrol. 

Sheriff Babeu earned his master’s degree in public administration 

from American International College, graduating summa cum 

laude. Mr. Chris Crane currently serves as the president of the National Immigration and Customs Enforcement Council 118, American Federation of Government Employees. He has worked as an 

immigration enforcement agent for the U.S. Immigration and Customs Enforcement at the U.S. Department of Homeland Security 

since 2003. Prior to his service at ICE, Chris served for 11 years 

in the United States Marine Corps. He has testified before this 

Committee before. 

Thank you for returning again. 

Sheriff Sam Page is an elected official and the chief law enforcement officer of Rockingham County, North Carolina. Sheriff Page 

serves as the—I’m sorry, I think I am stealing the thunder of the 

gentleman from North Carolina, Mr. Coble, who asked, and I 

agreed, and then forgot to recognize him for the purpose of acknowledging Mr. Page, Sheriff Page. 

Mr. COBLE. Mr. Chairman, you may steal my thunder any time 

you like. But before I introduce Sheriff Page, the case to which my 

friend from California referred earlier in North Carolina, I think 

that’s still in litigation. I don’t think it’s been resolved at this point. 

Sheriff Page is serving in his fourth term as high sheriff of Rockingham County. In addition to that, he has served on the National 

Sheriffs’ Association Border and Immigration Committee since 

2012. Sheriff Page is a veteran of the U.S. Air Force, having served 
9 

5 years in the Air Force. He is also a graduate of the National Security Institute. 

Sam Page is a law enforcement officer par excellence. I don’t 

want to embarrass you, Sam, but I’m going to compliment you. 

A friend of mine once asked how well I knew Sam Page. I said 

I know him very well. And my friend said he’s a good sheriff, but 

more importantly he’s a good man. And I echo that, and I am honored to introduce him, Mr. Chairman, to my friends on the Judiciary Committee. 

Sam, good to have you and your colleagues with us today. I yield 

back. 

Mr. GOODLATTE. And thank you. And I will simply add my welcome to that given by the distinguished gentleman from North 

Carolina. 

Mr. Jamiel Shaw is the father of Jamiel Shaw, Jr., a high school 

football star who was murdered by an illegal alien gang member. 

Jamiel Shaw, Jr., was a 17-year-old honor student being recruited 

by schools such as Stanford and Rutgers when his future was cut 

short by a gang member who was in the United States illegally. 

Mr. Shaw has since campaigned for Jamiel’s Law to be enacted. 

This law would prevent Los Angeles from being a sanctuary city for 

illegal alien gang members and would implement stronger enforcement measures to prevent illegal immigration. 

It is my particular pleasure to introduce the Honorable Randy C. 

Krantz, who serves as the elected Commonwealth’s Attorney for 

Bedford City, Virginia, a position he has held since 1995. He is the 

Director for the Bedford County Violent Crime Response Team, as 

well as the legal advisor for the Bedford Forensic Nurse Program. 

Additionally, Mr. Krantz is a member of the Southern Virginia 

Internet Crimes Against Children Task Force. He earned his undergraduate degree from Lynchburg College and his juris doctorate 

from the University of Richmond, as well as an MAR degree from 

Liberty University, and continued his education in my law firm 

many, many years ago, more than 20. 

You’re very welcome today, Randy. 

Ms. Sabine Durden is the mother of Dominic Durden, who was 

killed in a vehicle collision with an illegal immigrant. Dominic was 

a dispatcher for the Riverside County Sheriff’s Department and a 

licensed pilot. He was killed when he was riding his motorcycle to 

work and was hit by an illegal immigrant in a pickup truck who 

had two drunken driving convictions but was not in possession of 

a driver’s license. Dominic was Ms. Durden’s only child. 

Ms. Karen Tumlin is the managing attorney for the Los Angeles 

office of the National Immigration Law Center. She has been with 

NILC since 2005 and her focus has been on serving low-income immigrants. Ms. Tumlin also worked as a research associate at the 

Urban Institute before going to law school, where she worked on 

immigration issues. Additionally, she spent a year as a Luce Scholar in Thailand working on a study on child trafficking for the 

United Nations International Labor Organization. Ms. Tumlin 

earned a juris doctorate and a master’s degree in public policy from 

the University of California at Berkeley. 

Ms. Clarissa Martinez-De-Castro is the director of civic engagement and immigration at the National Council of La Raza. Ms. 
10 

Martinez oversees the organization’s work to advance NCCR immigration priorities, as well as efforts to expand Latino policy advocacy and electoral participation. A naturalized United States citizen, she is a graduate of Occidental College and Harvard’s Kennedy School of Government. 

Welcome to each and every one of you. This is a large panel. And 

I want to assure each of you that your written statements will be 

entered into the record in their entirety, and I ask that each of you 

summarize your testimony in 5 minutes or less. To help you stay 

within that time, there is a timing light on your table. When the 

light switches from green to yellow you will have 1 minute to conclude your testimony. When the light turns red it signals that the 

witness’ 5 minutes have expired. 

And I want to also note that I have an amendment on the floor 

in the National Defense Authorization Act coming up in a little bit 

and I will have to step out. Chairman Gowdy or others will fill the 

Chair. We will keep the hearing going in a smooth fashion. I apologize in advance for not being here for all of it, but I will be here 

for almost all of it, and all of your testimony is important to me. 

And we will start with you, Sheriff Babeu. Am I pronouncing 

that correct? Good. Thank you. 

TESTIMONY OF THE HONORABLE PAUL BABEU, 

SHERIFF OF PINAL COUNTY, FLORENCE, AZ 

Sheriff BABEU. Sheriff Paul works just as well. 

Thank you, Mr. Chairman and Members, for allowing me to testify today. A little bit about Pinal County. We are larger geographically than the State of Connecticut. We only have 15 counties in 

Arizona. And we’re still a rural county, we have 400,000 residents. 

And we’re a full service law enforcement agency, meaning that 

we’re primary responders to the majority of the residents of our 

county. 

We’re not on the border. In fact, we’re 70 miles north of the border. Yet we’re the number one pass-through county in the United 

States, over 3,000 counties. How can that be? Well, terrain features, the interstates naturally funnel through Pinal County on 

their way to Metro Phoenix and then other parts, possibly to your 

districts and people that you represent. 

According to a recent GAO study, says that 56 percent of the border is not under operational control. That’s a term that has been 

used in the past, a metric, if you will, by the Border Patrol. In my 

opinion and the opinion of most Americans, 44 percent is a failing 

grade. America can secure the border if we replicate the success of 

what’s been accomplished in the Yuma Sector. 

Mr. Chairman, you pointed out in my introduction that I served 

as a commanding officer, as an Army officer for a year and a half 

in Yuma. And I could speak to that experience. Essentially what 

happened there is, of the nine sectors from California to Texas, we, 

in direct support of our heroes in Border Patrol, were able to bring 

a 90 percent reduction in illegal entries and drug smuggling in that 

sector. So I reject anybody saying that the border cannot be secured. 

Three key elements in the McCain-Kyl plan, our former Senator 

Kyl from the State of Arizona. I was proud to be the prime author 
11 

of that legislation, and the three key components of that was 6,000 

armed soldiers, which the Senate bill does not have, for a period 

of 2 years so you can get in sequence to the second step, is built 

and complete a double barrier fence, originally authored by former 

Representative from San Diego Rankin—not Rankin—Duncan 

Hunter. In fact, President Clinton, to his great credit, signed that 

bill. He wanted three barriers and he gave him two. And it’s not 

just build a border fence for 2,000 miles, it’s 700 miles of the approximately 2,000-mile border. And it’s already predetermined 

area, that high-trafficked areas and areas where there’s built-up or 

urban centers that are there. And you have infrared cameras, cameras, lighting, and sensors to detect incursions as well. 

Third, in sequence, is this novel concept of enforcing the law. 

When that happened—and it couldn’t get there in the Yuma Sector 

until the first two components were there of the armed soldiers and 

building the infrastructure necessary—and when they enforced the 

law we saw the numbers drop dramatically. So that’s what’s called 

the proof of concept that should be brought to all other sectors. 

I strongly oppose the Senate’s—what’s referred to as the gang of 

eight plan because they offer all of these other items of a path to 

citizenship prior to ascertaining and guaranteeing that the border 

is secured, that the laws are enforced. 

Secretary Napolitano almost on a daily basis proclaims that the 

U.S.-Mexican border is secured. As part of the legislation, why I 

favor this as opposed to the Senate bill, is the Senate allows the 

Secretary of Homeland Security 6 months to come up with a plan 

to secure the border. My question is, I believe that was her job for 

the last 41⁄2 years, is secure the border. And when you look at numbers of 123,000 illegals that have been apprehended where I live 

in the Tucson Sector, that is last year, ladies and gentlemen. And 

that just reflects those who were apprehended, not those who got 

away or got through. 

And last, just over a year ago, our county, Pinal County lead the 

21-member law enforcement agency effort with the largest drug 

busts in the history of Arizona, $2 billion to $3 billion, against 

members of the Sinaloa Cartel, 76 members arrested, 108 firearms—not handguns but rifles—and AK-47s. And these what in 

law enforcement we call clues that the border is not more secure. 

The Secretary and others point to the dip in the numbers, and 

that is more a reflection of the economy. I am here to stand in support of Mr. Gowdy’s SAFE Act. And we’ve seen this movie before, 

in 1986, and if we go down that path it’s not going to end well and 

it’s going to have more devastating effect. 

Thank you for allowing me to speak today. 

Mr. GOODLATTE. Thank you, Sheriff Paul. 

[The testimony of Sheriff Babeu follows:] 
12 

Sheriff Paul Babeu 

Pinal County, Arizona 

June 13th, 2013 

H.R.2278 

"Strengthen and Fortify Enforcement Act" 

SAFE ACT 
13 

Pinal County Sherifrs Office 

Pinal County, Ari>;Q .... il ,!w'Y' U"C'd 11Il0l1& !be fastl!Sl jlrllWina ooW\tlca in Atnmu. toa.led btl""",,, 

PhDmil< and TUQOII _ Ill"' ..... >: anotJtc,r not KI bvorable t;t~ , •• PmaI COUNy it: !he- ·"'"",bff 0.- PIUS 

1'II""'J'1t C""/ll)' j;w /}nqJ aNI II"""", 1~"g /n aU of A...m..,., H 0.'", hair of the ilkph enlcri", 

Ammca come throu&/l Ari7.ooa. ~;"1 \0 U.S, Border Pall'Ol,last year oJ""" they 1!apfUfai121.28S in 

the 1'IK:son .!«lor which it lIMo busiCS1 aod t.le.dlic:st of My of the nine ""nhwet ~ U.s. Border Pltrol 

IIu adrnowltdged Ihi, number does not tllke intll Iccount anothn com;crwliw. es1imlte of double thi, 

nlllllbct of illegal I lluol mille it inm the United SIMld ~lt.:led. OfIhMe iIIelll'l, lluol were caullhl. 11 Nl 

30 pm:enl "flhtm .lready have. criml11.l1 reootd 'n !hoe United Stallt:!1, 

A~g 10 . rt'Calt GAO report, S6% of the border is NOT under "()prrotioM1 CtHllnJI." In my opini\ll1. 

and !he opinion ofmoil people, 44% iI. f.nina~. AmoIII has four rounli~ which ohare 1M b«da" 

with MeJ:'a>. Y\IIN County is undn opmlliona! cootroI III this tiom. The other thrft border OO\II1I;a 

(Pima, s..ttll CnI:il and Cuchise County) arc not Amem. can IOruRl the bonler if We rqllicalc the!llCa'Sl 

t)f whal Willi OICCOIUplishcd In Ih" Yuma Sedor. The YumD Sector has now _n,tnro I 97% m1OC1ion uf 

lIIepJ border CJQ5.5;np. The SCIIIIIOI M<:CIiniKyl 100Poinl Bontl!f S«Urily Plan is dcv~lop«l 11rg<l'ly /Tom 

the l.,..,ell ~ of\he Yuma S«1or dillin, Opcnotioo Jump SIaft. 'J'M Senalor McCaillfl{yllO-Poim 

BortItr Secunly Plarl nocd5 10 be implmwfltc.l1O .. lain I lee ... ., bonia" with Mexioo. 

There....., Il=e keyclmtrobof1he ScrIaoIt ... M<:Cli.nIKyI Plm. lmrmdilldy deploy 0.000 armell soldi~ lOr 

• period of two ye~ 10 immedilzc!y""",,", !he bonkr. While annod !IIlldien arc deployed. !he doubl<: 

bBnier fc:nce;1 completed with 1110: IUppolrtive survcilllU1CC1 pl.tremll, lighting. senlUl'I end Iupp<!rti'~ rolld, 

10 support nopid deployment of US Border Pllml. Thirdly, fully enfol'C'1l the llw without ony di~CI'liion 

option for iUejll •. 'nIil """'prom;'" o{ "",,'cIo and r,IMH" hI!) lInd~incd the nile ofJ.w. aince there...., 

00 ...... = 

I stron&ly oppoK 1M profII)K'(I unmipion reform offered by tho so Clllc:d "Gt...,. of EI,ItI" Officially 

tillc:d ,,,. ~IJ.mkr $«wily. Enmo",1r Oppanuniry. alld I"""ivallan MD<k ... i:ntll)1J Nt qf !O/J ~ or the 

"Sclr tl",et'-Afr:CIII~ Immlgrali(»t /Jill." 

We mllit ~ the bordtf fi~, prior to any diKllHion of ~ CII'ds ttnd • plitt 10 citi1..,...hip olt~ 10 

n",,"), 20 million illejlls:mel thcir families. Thol plan givn evC!l")'\hin, to Presidc:ttl Obama upflont, white 

boId<t IICNrily i. promiled ColIC" .pill on the backrod. We IR Ibool 10 topHI hirlOry. whm in 1986 

Prcaidcnt R ...... pVC' amMSty 10 2 million iIlqals. Now, the 1Iak .. arc far blaba'. )'l'I il I«Ql.I tMt we 

h:I"cn~ I~ our IcuolL The f.il= 10 K'CUrt I~ borda' .tll!f tile Reagan ..,~)' got III .. 'hen IO'C!_ 

100.)' with J 1 11120 million ill~' in nur COIIntry ..... this plan will r<:pnl hi5tory. 

971 Jason Lope.z Circle Building C • P.O. Box 867 • Florence, AZ 85132 

Main tS20) 866-6800 • Fax (520) 866·5195 • TDD (520) 868-681 0 
14 

Secretary Janet Napolitano almost daily proclaims that our USiMexican border is already secure in an effort 

to pave the way to amnesty. One year ago, the Tucson sector alone had 123,285 illegals apprehended and 

now the Chief of the u.S. Border Patrol recently testified that this number is up more than 13%. 

Additionally, our Sherifl's Office recently led a multi-agency investigation which busted the largest drug 

smuggling operation in the history of Arizona, valued between $2-$3 Billion, arresting 76 individuals afthe 

Sinaloa Mexican Drug Cartel and seized 108 of their firearms. In law enforcement, we call these clues; the 

border is NOT more secure IhM ever. 

This immigration reform plan gives Secretary Napolitano six montbs to come up with II border security 

plan. What has she been doing for the past four years? She deceptively proclaims border security in order to 

oonvince the American people that the border is secure and yet she tells law enforcement officials that the 

border can't be secured. In Nogales, Arizona on July 7'", 2011 Secretary Napolitano personally told me and 

several law enforcement officials that "we are never going to seal the border, and since the beginning of 

time, we've always had contraband and smuggling going through it." I along with most Americans wonder 

how the person in charge of securing the border can say we can't do it. The bord~'r can and must be secured. 

It has already happened in the Yuma Sector where border crossings have been reduced by 97%. 

Most agree that we need to reform our immigration system, yet logic and history should demand that our 

border must be secured first. I applaud this effort to add significant resources to build fencing, add needed 

staff, and improve security. This has to be done first. What is the justification to not secure the border first 

and then start on reform? I do nm trust that the border will be secured under this plan, since the very people 

in charge already believe we have security. We are asked to trust the very people who recently released 

2,228 criminal illegals to our slreets and continue to refuse to provide me their names, GTIminal history, their 

individual threat assessment, and location oftheir supervised release. We are asked to trust the very people 

who covered up Benghazi and gave over 2,000 high powered weapons (AG Holder's Fast & Furious) to the 

Mexican Drug Cartel that we arc tlghting. The only failsafe of this plan is if the border is not 90% secure, 

the plan calls to establish a commission years later to study what went wrong. Border security is a grave 

national security concern. 

RR. 2278 "Strengthen and FortifY EI!forcement Act" is the best plan I have seen presented to protect 

America. The bill if approved will give law enforcement agencies across the United States clear direction 

so immigration entorcement can be consistent throughout all communities. 

On a daily basis in Pinal County, law enforcement and citizens are forced to live with the results of an 

unsecured harder. H.R. 2278 the "Strengthen and FortifY Enforcement Act·' will give our deputies and law 

enforcement members across the nation, the authority they need to arrest and detain with those involved 

with drug and human trafficking who come freely through our open border. The citizCI1s of Pinal County 

have elected and given me their sacred trust to ensure they are safe. Almost daily, deputies of my office are 

involved in vehicle pursuits with cartel members smuggling drugs or humans, we have had executions, 

warnings from the U.S. Department of Homeland Security that the cartels members from Mexico were 

going to be sending assassins to Pinal County to execute other cartel members, we have had cartels send 

"Rip Crews·' who have been involved in gun battles wilh other cartel members, "Rip Crews'· have 

conducted traffic stops on individuals and committed robberies, we have seen homicides, horne invasions, 

kidnappings, shootings, sexual assaults, burglaries and thefts. Deputies have confronted arrn~'d individuals 

both in the dese!t and in vebicles and have been involved in shootings and physical confrontations. 

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 
15 

I urge this committee to give your full support to H.R. 2278 the "Strengthen and Fortify Enjorcement Act"' 

as it will give law enforcement and communities the power we need to keep OUf citizens safe. This 

legislation also' makes it more difficult for terrorists and other aliens who pose national security concerns to 

enter and remain in the United Slates, protects (he American public by facilitating the removal of criminal 

aliens, improves our nation's first line of defense - the visa issuance process, and provides additional 

assistance to U.s. Immigration and Customs Enforcement officers in carrying out their jobs of enforcing 

Federal inulligratioll laws. 

Respectfully, 

Paul 

~R~ Babeu, Sheriff 

Pinal County 

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 
16 

Mr. GOODLATTE. And we’ll now welcome Mr. Crane. 

TESTIMONY OF CHRIS CRANE, PRESIDENT, NATIONAL IMMIGRATION AND CUSTOMS ENFORCEMENT COUNCIL 118, 

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 

Mr. CRANE. Good afternoon, Chairman Goodlatte, Ranking Member Conyers, and Members of the Committee. We are still reading 

through the SAFE Act, introduced by Congressman Trey Gowdy. 

However, my initial reaction is one of great appreciation and support for Congressman Gowdy’s efforts. I applaud Congressman 

Gowdy and his staff for creating a bill that makes public safety a 

priority through reforms to enforcement. 

Unfortunately, gang of eight legislation currently before the Senate reflects an absence of law enforcement input as it contains no 

tangible plan for border security and essentially ignores interior 

enforcement altogether, while simultaneously creating a path to 

citizenship for members of criminal street gangs and most other 

criminal aliens. We hope that members of both parties in the 

House and the Senate will review the provisions of the SAFE Act 

as gang of eight legislation ignores interior enforcement and continues practices which have led to the Nation’s current immigration 

problems. 

With visa overstays accounting for approximately 40 percent of 

the 11 million aliens currently in the United States illegally, S. 744 

speaks only of increases to border enforcement, not interior enforcement. Investments in border security will never address the problem of visa overstays, which again account for nearly half of all illegal aliens currently in the United States. Investments on the border will also do nothing to ensure that everyone who successfully 

crosses the border illegally is apprehended and removed, as that is 

also ICE’s interior enforcement mission. 

Since 9/11, the Border Patrol has tripled in size, while the interior enforcement component of ICE appears to have become smaller. ICE is tasked with apprehending and removing 11 million illegal aliens in the United States, as well as 30 million aliens legally 

in the U.S. who are subject to removal for status violations, generally being criminal convictions. In short, ICE polices 40 million 

people in 50 States, Guam, and Puerto Rico, with just 5,000 officers, a force half the size of the Los Angeles Police Department. Of 

those 5,000 officers, hundreds work as detention guards in detention centers instead of performing law enforcement duties due to 

the elimination of detention guard positions during transition from 

INS to DHS. The transition also split ICE’s 5,000 officers into two 

separate with two different arrest authorities, thereby crippling the 

agency’s ability to use its handful of officers across the full spectrum of immigration enforcement. 

The gang of eight’s so-called comprehensive reform ignores red 

flags at ICE and does nothing to reform interior enforcement in an 

agency tasked with that mission. The SAFE Act, however, takes 

aggressive steps to fix these problems. It adds additional officer positions, establishes the same arrest authorities for all officers, 

takes law enforcement agents out of detention centers, replacing 

them with detention guards, provides additional ICE trial attorneys, support staff, and much-needed protective equipment for offi-
17 

cer and agent who face growing criminal populations that are increasingly violent and confrontational. 

In order to combat the criminal alien problem within the United 

States and keep dangerous criminals off the streets drafters, of the 

SAFE Act clearly reviewed current immigration laws and identified 

areas of concern in an effort to eliminate loopholes for criminals 

and keep communities safe. The SAFE Act adds upon aggravated 

felony charges involving the sexual abuse of children, homicide, 

manslaughter, child pornography, firearms offenses, passport 

fraud, stalking, and child abuse. It makes gang members deportable, detains dangerous criminal aliens that we can’t deport, and 

expands on charges for espionage, crimes again government, and 

other criminal activities. It provides support for local law enforcement and legally strengthens ICE detainers, keeping criminals off 

the street. 

In conclusion, it is our opinion that the approach taken in the 

SAFE Act is the approach needed to fix our broken immigration 

system. To effectively address the thousands of concerns throughout our Nation’s broken immigration system, we must take a diligent and systematic approach of reviewing current laws, practices, 

and resources to prevent repeating the mistakes that currently 

exist and ensure that future laws can be effectively implemented 

and enforced. 

Thank you, and that concludes my testimony. 

Mr. GOODLATTE. Thank you, Mr. Crane. 

[The testimony of Mr. Crane follows:] 
18 

Statement by Chris Crane, President, 

National Immigration and Customs Enforcement Council 118 

of the 

American Federation of Government Employees 

Before the 

House Committee on the Judiciary 

June 13,2013 
19 

Good Afternoon Chairman Goodlatte, Ranking Member Conyers and members of the 

Committee, 

Introduced late last week, we are still reading through the "Strengthen and Fortify 

Enforcement Act" or "SAFE Act" from Congressman Trey Gowdy. However, my initial 

reaction is one of great appreciation and support for Congressman Gowdy's efforts. I applaud 

Congressman Gowdy and his staff for creating a bill that focuses on public safety through 

reforms to enforcement. As representatives of ICE agents and officers on the front lines of 

immigration enforcement, our union has been focused on ensuring that public safety and national 

security issues are a part of any new immigration legislation drafted by Congress. Unfortunately, 

we have for the most part been ignored by both the White House and the Senate. Gang of Eight 

legislation currently before the Senate reflects an absence oflaw enforcement input as it contains 

no tangible plan for border security and for the most part ignores interior enforcement altogether, 

while simultaneously creating a path to citizenship for members of criminal street gangs as well 

as a majority of criminal aliens currently residing in the United States illegally. In short, we are 

shocked by the lack of border security and interior enforcement measures as well as the level of 

criminality pennitted by the Gang of Eight legislation. We hope that both Democrats and 

Republicans, in both the House and the Senate, will review the provisions of the SAFE Act, as 

well as its spirit and intent. As T have said in previous testimony, enforcement is not a "dirty 

word." It saves lives. Enforcement is the means by which we prevent people from dying in the 

desert. It is the means by which we counter human traflicking and a multitude of other crimes 

that hann, kill and otherwise victimize millions of citizens, residents and other aliens residing 

within the United States. 
20 

However, it appears that the individuals and organizations involved in crafting the Gang 

of Eight legislation purposely ignored interior enforcement with the intent of continuing the 

practices which have led to the nation's current immigration problems. The proof of this is the 

bill itself, S.744, the Gang of Eight's immigration legislation. 

With visa overstays accounting for an estimated 40% of the II million illegal aliens 

currently in the United States (4.5 million), S. 744 speaks only of significant increases to border 

enforcement, not interior enforcement. Clearly, 4.5 million visa overstays entered the United 

States legally, and did not illegally cross our nation's borders. This is a problem that cannot be 

stopped by the United States Border Patrol. Investments in border security will never address 

this problem, which accounts for almost half of all illegal aliens currently in the United States. 

Additionally, investments on the border will do nothing to ensure that everyone who 

illegally crosses the border into the United States is apprehended and removed. That again is 

TCE's interior enforcement mission. The number of illegal aliens currently on the interior of the 

United States stands at the staggering count of 11 million. We believe that millions more will 

enter illegally even if S. 744 passes, as its border security measures are lacking and would not 

appear to take atfect for five to ten years following enactment. Also, it is doubtful that any 

border security plan will ever reach a one hundred percent apprehension rate. 

But ICE's mission doesn't stop at 11 million illegal aliens on the interior of the United 

States. It is also ICE's mission and responsibility to police criminals and status violators among 

the approximately 30 million aliens legally in the United States. This makes for approximately 

40 million aliens, both legal and illegal, that ICE is tasked with policing. For the most part, ICE 

polices this group of 40 million people spread across 50 states, Guam and Puerto Rico with 
21 

approximately 5,000 officers and agents - a force approximately half the size of the Los Angeles 

Police Department 

Unlike most police departments; however, ICE does not have separate departments and 

officers that handle special needs such as Court Security, Juvenile Services, Probation and 

Parole, Detention Management and Transportation. This handful of ICE officers nationwide 

handles these duties as well. In addition, these 5,000 officers and agents do something that no 

other law enforcement agency in the nation does, they deport people to every comer of the globe. 

Since 9/11, the Border Patrol has approximately tripled in size, while the interior 

enforcement component ofICE, Enforcement and Removal Operations (ERO), appears to have 

become smaller. When DHS was established, ERO/ICE effectively lost its special agents to 

Homeland Security Investigations; ICE lost a position titled Immigration Agent (IA), as well as a 

position titled Detention Enforcement Officer (DEO). While ICE lost two positions and 

effectively moved another to a predominantly "Customs Enforcement" role, TCE did not lose any 

of the immigration related duties previously performed by these positions. As a result, hundreds 

of otlicers from within our handful of 5,000 fully trained federal immigration agents, work as 

detention guards in detention centers instead of arresting criminals on the street and injails and 

prisons. Adding further to the problem, while all ICE ERO otlicers have the same training 

requirements, the 5,000 officers are split into two separate positions with two ditferent arrest 

authorities. These differing arrest authorities literally lead to situations in which officers who are 

prepared to make an arrest or assist another agency in doing so can't because they don't have the 

full arrest authorities under the INA - again, even though they all have the same training. 
22 

Never have I seen any organization, because of its dysfunctional structure and 

organization, so clearly set up for failure, as ICE Enforcement and Removal Operations. Yet the 

Gang of Eight legislation ignores red flag after red flag at ICE which strongly indicate the need 

for changes. While S. 744 claims to be a "comprehensive reform" it does nothing to reform 

arb'llably our nation's most critical immigration component in need of the most reforms - interior 

enforcement and the agency tasked with that mission. 

The SAFE Act, however, takes aggressive steps to fix these problems by adding much 

needed additional officer positions to ICE ERa, as well as by creating force multipliers from 

within existing officer resources by providing all officers and agents with equal arrest authorities 

and reinstituting limited numbers of Detention Enforcement Officers so that immigration agents 

who currently perform detention guard duties can be reassigned back to law enforcement duties. 

The SAFE Act also provides additional ICE prosecuting attorneys, much needed administrative 

staff, and much needed funding for weapons and safety equipment to protect ERa officers and 

agents who face growing criminal alien populations in the field which are increasingly violent 

and confrontational. The SAFE Act also provides for an ICE advisory council which will 

include ICE officers and trial attorneys to increase communication between boots on the ground 

employees and members of Congress. 

In order to combat the criminal alien problem within the United States and keep violent 

or otherwise dangerous criminals off the streets, the drafters of the SAFE Act clearly reviewed 

current immigration laws making fixes to identified areas of concern in an effort to shut down 

loopholes for criminals and keep communities safe. Some of those changes include: 

• SAFE expands upon aggravated felony charges involving the sexual abuse of children; 
23 

• SAFE adds the charges of homicide and manslaughter to the definition of aggravated 

felony; 

• SAFE adds child pornography to the list of aggravated felony charges; 

• SAFE makes aliens convicted offailing to register as sex offenders inadmissible and 

deportable; 

• SAFE expands aggravated felonies to include not just those who committed the act, but 

also those who solicited, commanded or abetted such offenses; 

• SAFE makes aggravated felons; aliens with convictions for certain fraud offenses, 

firearms offenses, stalking and child abuse inadmissible; 

• SAFE expands the range of passport crimes related to passport fraud that constitute 

aggravated felonies; 

• SAFE malces two or more convictions for DUI an aggravated felony; 

• SAFE appears to prevent classes of aliens other than lawful permanent residents from 

purchasing or owning firearms; 

• SAFE appears to expand the range of conduct for which an alien can be inadmissible as it 

pertains to espionage, exporting sensitive infonnation, overthrow of the United States 

Government and other criminal activities; 

• SAFE makes members of criminal street gangs inadmissible and deportable; 

• SAFE allows DHS to detain dangerous criminal aliens who can't be deported; 
24 

• SAFE provides 287(g) programs to requesting States and localities which identify a need 

for stronger participation in enforcing immigration laws in their areas; 

• SAFE requires State and local law enforcement agencies to honor ICE detainers ensuring 

that ICE agents and officers can assume custody before criminals are released from jails 

back into communities; 

• SAFE withholds certain Federal grants from States and localities that become sanctuary 

cities and thereby violate Federal immigration laws and release criminals from jails back 

into communities. 

In conclusion, it has been our opinion from the beginning that the approach taken in the 

SAFE act is the approach needed if as a nation we are serious about fixing our broken 

immigration system. "Immigration," whether defined as our written immigration laws, the 

processes of both legal and illegal immigration, and/or the policies, practices and resources of the 

multiple agencies tasked with varying immigration related missions, is far too complex, diverse 

and far reaching of a problem to effectively address through a comprehensive approach. To 

effectively address the thousands of concerns throughout our nation's broken immigration 

system, we must take a diligent and systematic approach of reviewing our current laws, practices 

and resources to prevent repeating the mistakes that currently exist and ensure that any future 

laws can be etIectively implemented and enforced. 

We look forward to further review and discussion of the SAFE Act in the weeks and 

months to come, and humbly offer our assistance in the development of amendments, if any are 

needed. 

Thank you and that concludes my testimony. 
25 

Mr. GOODLATTE. Sheriff Page, welcome. 

TESTIMONY OF THE HONORABLE SAM S. PAGE, SHERIFF OF 

ROCKINGHAM COUNTY, WENTWORTH, NORTH CAROLINA 

Sheriff PAGE. Thank you. Mr. Chair, Co-Chair, and distinguished 

Members of the U.S. House of Representatives Judiciary Committee, I gave greetings from Rockingham County, North Carolina. 

I believe that you all in Congress have one of the toughest jobs in 

our Nation today: You’re being asked to fix a broken immigration 

system in the U.S. and to make sure that your legislation will provide a solution that will last for many years to come. 

I come before you today not as an expert in immigration law or 

border security, I am just one of 3,080 sheriff’s in America that is 

asking for your help in solving our border security and immigration 

problem. 

Between 2011 and 2012, while working with the Drug Enforcement Agency task force in my county, 12 Mexican cartel associates 

were arrested in our county, along with lots of Marijuana, millions 

of dollars of cash, kilos of cocaine, AR-15 rifles, and assorted firearms. The sheriff mentioned earlier, next to my county, Alamance 

County reported that he had two drug-related execution-style murders in the past 5 years. According to the Drug Enforcement Agency report, North Carolina is second place compared to the Atlanta 

region in drug trafficking routes by the Mexican drug cartel. And 

these cartels reported to be operating in almost 1,200 cities in 

America. 

In 2 to 3 days—here is the relationship to the border—2 to 3 

days the illegal drugs traveling from the border can be anywhere 

in the United States and also in rural Rockingham County, North 

Carolina. In North Carolina since 2010 I’ve process working with 

the Federal ICE Secure Community Programs 151 persons that are 

criminally charged that are illegal in the U.S. Two of the detainees 

have returned back to be rearrested. It has cost us $330,000 to 

house those inmates and approximately 66 percent of those arrested were charged with traffic-related offenses. 

I have traveled to Arizona and Texas in the past 3 years to see 

firsthand what my fellow sheriffs, what they’re dealing with along 

the border, experiencing drug trafficking, human trafficking, illegal 

immigrations, and other than Mexican crossings along our porous 

southern border of Mexico. And this information is being shared 

with sheriffs from North Carolina and across the U.S. 

While I was at a briefing I had the opportunity to ask the question of Secretary Napolitano. I asked her, why have we not declared the Mexican drug cartel a terrorist organization, and what 

is the reluctance for this Administration to place a regular military 

force on our southern border with Mexico? And her answer to me 

was, Sheriff, we’re not at war with Mexico. 

But, you know, can you imagine how frustrating that answer was 

to me, because I tend to differ with the Secretary. Because in the 

past 6 years 58,000 Mexican citizens have been murdered by the 

Mexican drug cartel in Mexico just south of our border. That’s a 

war, that’s a drug war. 

I have read the proposed House bill 2278, and these are a few 

of my comments. Quickly, I will state the bill empowers all law en-
26 

forcement in America to cooperate making our communities safer. 

Federal ICE agents get the congressional backing that they’ve 

needed for a long time. The bill allows for Border Patrol agents to 

cross Federal land without fear of sanction and legal roadblocks. 

The bill places oversight and accountability on the Secretary of 

Homeland Security. The bill provides the needed funding for immigration detention resources and detention officers. 

The bill does not reward municipalities that have chosen to become sanctuary cities in violation of our U.S. Immigration law. The 

bill reduces the chances of criminals of all types from receiving 

benefits in status in our country. Because I believe that Senate bill 

744 we talked about earlier, I believe that it does give a path to 

citizenship for those criminally charged who are illegal in our country. 

The bill improves our visa issuance process, and it also establishes an ICE advisory council to Congress. I have read the public 

safe provisions of Senate bill 744 introduced by the gang of eight 

committee. I have also reviewed the proposed SAFE Act, H.R. 2278. 

In the short amount of pages your House bill will restore the rule 

of law in immigration enforcement in America, as well as the authority reserved for the ICE agents to conduct proper interior and 

immigration enforcement with those powers protected by congressional legislation. 

Senate bill 744 fails to meet that standard, in my opinion, and 

I believe its provisions would not only provide amnesty for criminal 

violators, but could endanger the public, which I as sheriff am 

sworn to protect. I do not believe that S. 744 has true intentions 

of tracking visa overstay violators, because if it was the intention 

biometric tracking would be used at all international ports of entry. 

And costs was stated recently in debates in the Senate about the 

decline in that technology usage. In my opinion, you can’t place the 

cost on one single American life when it comes to homeland security. 

Secretary Napolitano said that this was not an immigration bill, 

but instead a public safety bill. My comment, is if it was a public 

safety bill how come law enforcement wasn’t involved in the 

crafting this bill? 

Lastly, border security in S. 744 seems to be secondary to amnesty. Mr. Chairman, I personally want to thank you all for giving 

me the opportunity to come before you today and answer your 

questions. I look forward to any questions you might have. Thank 

you. 

Mr. GOODLATTE. Thank you, Sheriff. 

[The testimony of Sheriff Page follows:] 
27 

Unrted States House of Representatives 

House Judiciary Committee Hearing on H.R. 2278 "The Strengthen And Fortify 

Enforcement Act" IS.A.F.E. ACT). 

June 13, 2013 

Statement By: The Honorable Sheriff Sam S. Page 

Rockingham County Sheriff's Office, North carolina 

PAGEl 
28 

Mr. Chairman, CO-Chairman, and Distinguished members of this u.s. House of 

Representatives Judiciary Committee. I give greetings from the citizens of 

Rockingham County, North Carolina whom I represent. 

Currently, I am serving in my fourth term as the elected Sheriff of Rockingham 

County, NC. I am the past President of the North Carolina Sheriffs' Association, 

and currently serve on the National Sheriffs' Association Border Security and 

Immigration Committee as Co-Vice Chair. I am a Veteran, and have served for 

more than thirty years in civilian law enforcement in North Carolina. 

I believe that you all in our Congress have one of the toughest jobs in our Nation 

today. You are being asked to fix our broken immigration system in the U.S., and 

to make sure that your legislation will provide a solution that will last for many 

years to come. I come before you today not as an expert in immigration law or 

Border Security. I am just one of 3080 Sheriffs in America that is asking for your 

help in solving our Border Security and immigration problem that impacts all of 

our citizens across the u.S. in many ways. 

In 1990 I had my first encounter with illegal immigration in my county. While on 

patrol we located six suspicious subjects hitchhiking along our bypass highway. It 

turned out they were all in the country illegally. When I.C.E. was contacted, I was 

told by the Agent on duty that if we had not charged the subjects, to release 

them; because they did not have the funds to provide transportation. 

Fast forward between 2011- 2012 ... While working with the Triad Drug 

Enforcement Agency (D.E.A.) Task Force, we have arrested twelve (12) Mexican 

Cartel associates within my county in North Carolina. During the investigative 

process, we located large amounts of marijuana, Kilos of cocaine, more than a 

million dollars in cash, five (5) AR-15 Assault Rifles and other assorted firearms in 

the possession of these persons that are not only affiliated with the Mexican 

Drug Cartels, but are committing criminal drug trafficking offenses within my 

county and state. The Sheriff in the county next to mine reported that they had 

two (2) drug related execution style murders in the past five years. 

PAGE 2 
29 

According to my last D.E.A. briefing, North Carolina is second place compared to 

the Atlanta Region in drug trafficking routes by the Mexican Drug Cartels. These 

Drug Cartels are also reported to be operating in approximately 1200 cities 

across the u.s .. As I have explained to the citizens of my county, it only takes two 

(2) or three (3) days travelling time for illegal drugs to travel from the border to 

anywhere in the United States, including rural Rockingham County, North 

Carolina. 

In North Carolina, since October of 2012, I have participated in the Federal I.C.E. 

"Secure Community Program". Since we started, we have processed 151 persons 

that have been criminally charged and are residing in the U.S. illegally. Out of the 

ninety-three (93) of the detainees that been picked up by I.C.E., two (2) of the 

detainees have returned to be rearrested. The cost factor to my county for 

housing these criminally charged illegal aliens has amounted to $329,490. 

Approximately 66% of those arrested that are illegal were charged with traffic 

related offenses. 

I have personally travelled to the states of Arizona and Texas in the past three (3) 

years to observe firsthand what my fellow Sheriffs along the border are 

experiencing with regards to drug trafficking, human trafficking, and illegal 

immigrations, including O.T.M. crossings along our porous Southern Border with 

Mexico. This information has been shared with Sheriffs across NC and the U.S .. 

One month ago, while attending a White House briefing by five (5) federal 

officials, I had the opportunity to ask Department of Homeland Security (D.H.S.) 

Secretary Napolitano a question. I simply asked why have we not declared the 

Mexican Drug Cartel a terrorist organization, and what is the reluctance for this 

administration to place a regular military presence on our Southern border with 

Mexico? Her answer to me was "Sheriff, we are not at war with Mexico!" You 

can imagine how frustrating that answer was to me. I tend to differ with 

Secretary Napolitano since 58,000 Mexican citizens have been killed by Cartels in 

the past six (6) years in Mexico. 

PAGE 3 
30 

Today, I have this great honor to come before your committee as a Sheriff 

representing the folks in my county. My intentions for being here is to make sure 

that I live up to the primary responsibility of any government, which is to 

support public safety and to protect and serve its citizens. 

I have read this proposed House Bill 2278 and these are a few of my comments: 

1. I think that your Bill empowers all law enforcement in America to 

cooperate in the process of making our communities safer as a force 

multiplier. 

2. This Bill gives our federall.C.E. Agents the Congressional backing they need 

to carry out their duties to enforce our nation's immigration laws as they 

should be. 

3. This Bill allows for our Border Patrol Agents to cross federal land without 

fear of sanctions and legal roadblocks, thus allowing more effective use of 

their manpower to secure our borders from threats to the u.S. 

4. This Bill places oversight and accountability on the Secretary of D.H.S. for 

decisions being made regarding interior immigration enforcement. 

s. The House Bill provides much needed funded for immigration detention 

resources, and funding to localities that choose to participate in 

partnership. 

6. This Bill does not reward those municipalities which have chosen in the 

past to become Sanctuary Cities in violation of u.S. immigration law. 

7. This Bill reduces the chances of criminals of all types including gang 

members, aggravated felons, and sex offenders from receiving or 

benefiting from protected status. Why would you reward criminals? 

8. This Bill improves our Visa issuance process. 

9. Establishes an I.C.E. Advisory Council to advise Congress and I.C.E. on ways 

of improving enforcement, addressing the needs of I.C.E. personnel, and 

assesses the effectiveness of enforcement policies. 

PAGE 4 
31 

To the members of this committee - I have read the public safety provisions of 

Senate Bill 744 introduced by the Senate "Gang of Eight" committee. To date, 

this bill measures in length more than 1000 pages. 

I have also recently reviewed your proposed "S.A.F.E. ACT" HR.2278 which 

measures about 174 pages. In those short amount of pages, your House Bill will 

restore the "Rule of Law" in immigration enforcement in America as well as the 

authority reserved for I.C.E. Agents to conduct proper interior immigration 

enforcement with those powers protected by Congressional legislation. 

Senate Bill 744 fails to meet that standard in my opinion, and I believe that its' 

provisions would not only provide Amnesty for criminal violators, but could 

endanger the public which I, as a Sheriff, have sworn to protect. I do not believe 

that SB.744 has any true intention of tracking Visa overstay violators, because if 

that was the intention, Biometric tracking would have been including in the Bill 

at ALL international ports of entry. Cost was stated as a reason in recent debates 

to decline the technology. In my opinion, you can't place a cost too high on a 

single American's life when it comes to Homeland Security. 

Secretary Napolitano stated to me at a recent White House briefing that SB.744 

wasn't an immigration bill, but a public safety bill. My response to that comment 

would be that if that is true, why wasn't law enforcement involved in the 

crafting of the Bill early on? Lastly, Border Security in the proposed SB.744 seems 

to be secondary to Amnesty. 

Mr. Chairman, I personally think that this House Bill and the provisions that it 

covers is a tremendous step in the right direction in interior immigration 

enforcement. I look forward to assisting you all in this proposed legislation 

HR.2278. I believe it to be a promising piece of legislation in the bigger picture of 

immigration reform. 

I look forward to any questions this committee might have. 

Sheriff Sam Page-Rockingham County, North Carolina 

PAGE 5 
32 

Mr. GOODLATTE. Mr. Shaw, welcome. 

TESTIMONY OF JAMIEL SHAW, SR., COMMITTEE TO PASS 

JAMIEL’S LAW, LOS ANGELES, CA 

Mr. SHAW. Thank you very much, Mr. Goodlatte and Ranking 

Member Conyers. Thank you for holding this hearing. 

On March 2, 2008, the American dream came to a screeching 

halt for my son, Jamiel Shaw, II, also known as Jamiel Shaw, Jr. 

Jamiel was just 17 years young and a football superstar destined 

for greatness when he was gunned down three doors from my home 

while his mother was serving in Iraq. 

Jamiel was a junior at Los Angeles High School and already 

being looked at by universities such as Rutgers and Stanford. The 

last time I spoke to my son he was on his way home from the mall. 

I can still hear his voice: Be right home, dad, I’m right around the 

corner. He never made it home and our lives are permanently separated. 

The next time I saw my son he was laying on the ground dead. 

According to the coroner who testified at the trial, Jamiel was shot 

in the stomach first, and while he was lying on the ground with 

his hands covering his head pleading for his life, he was shot again. 

The bullet went through his hand and spread into his head. 

On the day of my son’s funeral the LAPD came to our home to 

inform us that they had captured the person they believed had 

murdered Jamiel. We also learned that he was executed by an illegal alien gang member from Mexico with a history of violence. We 

often hear supporters of people who are here illegally say that the 

children were brought to USA by no fault of their own, as if that 

makes everything right. But many people overlook the fact that 

their parents made a choice to violate our laws. The parents of my 

son’s killer made a choice to leave their country illegally, entered 

America illegally, and their illegal alien son made the choice to join 

the gang. 

The illegal alien charged with murdering my son had been previously arrested in November 2007 for assault with a deadly weapon and battery on a police officer, yet he was given early release 

from jail on March 1st, 2008, a Saturday night. The very next day 

he executed my son and left him for dead like he was a piece of 

trash in the street. 

According to the District Attorney’s office in Los Angeles, Jamiel 

was executed because of the color of his skin and the color of his 

red Spider-Man backpack. We learned from Sheriff Baca of the LA 

County Sheriff’s Department that shot callers from jail order 

Latino gangbanger inmates to kill Black males when they are released from jail. So why aren’t politicians outraged? Could it be because some politicians care more about potential votes of illegal 

aliens granted amnesty rather than the safety of U.S. citizens? 

Sheriff Baca had a violent gang member in the custody that was 

also in the country illegally, and yet they still released him back 

onto our streets to murder our children. Why? Politicians say they 

want the violent ones, but too often when they catch them they 

simply release them back into the community only to commit more 

crimes. 
33 

To this day we still don’t know why the Sheriff’s Department 

negligently released an illegal alien gangbanger from jail. And why 

was he given a 6-month early release? We still don’t any why Immigration and Customs Enforcement, ICE, didn’t pick him up from 

jail or if ICE was even called by the Sheriff’s Department for pick 

up. They refuse to tell us what happened. 

According to a report conducted by Senator Dianne Feinstein several years ago, the majority of all gangs in the USA consists of illegal alien gang members. In spite of this report, Senator Feinstein 

still supports the useless gang provisions in the gang of eight illegal immigration bill, which rewards illegal alien gangs with a path 

to citizenship. Why? Why would elected officials reward 

gangbangers who are in the country illegally with amnesty and a 

pathway to citizenship? 

The trial of my son’s killer finally began on April 24, 2012. On 

May 9, 2012, he was found guilty of first degree murder, for which 

the jury recommended the death penalty on May 23, 2012. On November the 2nd, 2012, the judge upheld the jury’s verdict and sentence. My son’s killer is now in San Quentin on death row waiting 

for his execution and my son’s body is now in the Inglewood Cemetery Mortuary in Inglewood, California, waiting for justice. 

My family and I supported a law called Jamiel’s Law and we continue to support Jamiel’s Law. Jamiel’s Law, like H.R. 2278, will 

deport illegal alien gang members from the USA. Like H.R. 2278, 

Jamiel’s Law would not wait for them to commit other crimes, but 

would deport them for being in a gang while living in the country 

illegally. 

This is why we strongly support the Strengthen and Fortify Enforcement Act, H.R. 2278, also known as the SAFE Act. The SAFE 

Act makes being in a gang and being in the country illegally a deportable offense. We hope all elected officials will support Congressman Trey Gowdy’s bill. 

I would like to end by saying, 5 years have passed and there are 

still many, many unanswered questions regarding the execution of 

my son Jamiel. I would like to ask every one here, every one listening who supports the people here illegally, and every one who 

wants to help people here illegally a question: What would you do 

if your child was shot in the stomach and shot in the head by an 

illegal alien documented gangbanger negligently released from jail? 

Would you still support illegal immigration and unsecured borders? 

I think not. 

Thank you for giving me the opportunity to talk about my beloved son Jamiel Shaw, II, who I love with all my heart and soul. 

Thank you. 

Mr. GOODLATTE. Thank you, Mr. Shaw, for that very compelling 

testimony, and you have all of our shared sympathy for that dramatic loss. 

[The testimony of Mr. Shaw follows:] 
34 

IN MEMORY OF JAMIEL ANDRE SHAW THE 2ND 

In 2008 on March the 2nd, the American dream came to a screeching halt for my son, Jamiel Shaw 

the 2nd also known as Jamiel Shaw Jr. 

Jamiel was just 17 years young and a football superstar destined for greatness, when he was gunned 

down three doors from our home while his mother was serving in Iraq. 

He was a junior at Los Angeles High School and already being looked at by universities such as 

Rutgers and Stanford. The last time I spoke to my son he was on his way home from the mall. I can 

still hear his voice, "be right home dad, I'm right around the corner"! He never made it home and 

our lives are permanently separated. 

The next time I saw my son, he was lying on the ground dead! According to the coroner who 

testified at the trial, Jamiel was shot in the stomach first and while he was lying on the ground with 

his hands covering his head (pleading for his life), he was shot again. The bullet went through his 

hand and straight into his head!! 

On the day of my son's funeral, LAPD came to our home to inform us that they captured the person 

who they believe murdered Jamiel. We also learned that he was executed by an illegal alien gang 

member from Mexico, with a history of violence. 

We often hear supporters of people who are here illegal say that the children were brought to the 

USA "by no fault of their own" as if that makes everything right. But many people overlook the fact 

that their parents made a choice to violate our laws. The parents made a choice to leave their 

Country illegally and entered America illegally and their illegal immigrant son made the choice to join 

the gang. 

The illegal alien charged with murdering my Son was arrested in November, 2007 on a prior arrest of 

assault with a deadly weapon and battery on a Police Officer. Yet he was given early release from 

jail on March 1st (a Saturday night). The very next day, he executed my son and left him for dead 

like he was a piece of trash on the streets! 

According to the District Attorney's Office in Los Angeles, Jamiel was executed because of the color 

of his skin and the color of his red spider man backpack. 

We learned from Sheriff Baca who is the Sheriff at the Los Angeles County Sheriff's Department 

(LACSD) that shot callers from jail order Latino gangbangers to kill black males when they are 

released from jail. So why aren't politicians outraged? Could it be because some politicians care 

more about potential votes of illegal aliens rather than the treatment of U.S. Citizens? 

Sheriff Baca had a violent gang member in custody who is also in the country illegally and yet they 

still released him back on our streets to murder our children. Why? Politicians say they want the 

violent ones but when they catch them and they release them back into the community only to 

commit more crimes. 
35 

To this day, we still don't know why LACSD negligently released him from jail and why was he given a 

6 month early release? We still don't know why Immigration Custom Enforcement (ICE) didn't pick 

him up from jailor if ICE was even called by LACSD for pickup. They refuse to tell us what happened. 

According to a report conducted by Senator Dianne Feinstein several years ago, the majority of all 

gangs in the USA consist of illegal alien gang members. In spite of this report by Feinstein, she still 

supports the useless gang provision from the gang of 8 illegal immigration bill which rewards illegal 

alien gangs with a path to citizenship. Why? Why would an elected official reward gangbangers who 

are in the Country illegally? 

The trial finally started on my Son's killer on April 24, 2012. He was found guilty on May 9, 

2012. The jury recommended the death penalty on May 23, 2012 and the Judge upheld their 

decision on November 2, 2012. 

He is now in San Quentin on death row waiting for his execution and my son's body is now in the 

Inglewood mortuary in Inglewood California, waiting for justice! 

My family and I supported a law called Jamiel's Law and we continue to support Jamiel's 

Law. Jamiel's Law like H.R. 2278 will deport illegal alien gang members from the USA. Like H.R. 

2278, Jamiel's Law will not wait for them to commit other crimes, but will deport them for being in a 

gang while living in the country illegally. This is why we strongly support the Strengthen and Fortify 

Enforcement Act (HR2278) also known as the SAFE Act. The SAFE Act makes being in a gang and 

being in the country illegally a deportable offense. We hope ALL elected officials will support 

Congressman Trey Gowdy's bill! 

I like to end by saying, five years later and there are still many, many, unanswered questions 

regarding the execution of my son, Jamiei. Ilike to ask everyone here and everyone listening who 

support the people here illegally and everyone who want to help people here illegally a question. 

What would you do if your child was shot in the stomach and shot in the head by an illegal alien 

documented gangbanger, negligently released from jail? Would you still support illegal immigration 

and unsecured borders? I think not. 

Thank you for giving me the opportunity to talk about my beloved son, Jamiel Shaw the 2nd! Who I 

love with all my heart and soul!! 
36 

Mr. GOODLATTE. Mr. Krantz, welcome. 

TESTIMONY OF THE HONORABLE RANDY C. KRANTZ, 

COMMONWEALTH’S ATTORNEY, BEDFORD, VA 

Mr. KRANTZ. Mr. Chairman, Ranking Member Mr. Conyers, other 

Members of the Committee, it is a privilege for a local prosecutor 

who is charged with the duty of faithfully executing the laws in 

their jurisdiction to come before this Committee and have an opportunity to be heard. I want to tell you that I can only imagine the 

difficult job you have of balancing and weighing all the competing 

interests and needs and fundamental fairness. 

But the fact remains that, like politics, all crime is local. At the 

end of the day it is the States and the localities that have the ultimate responsibility to protect their citizens by faithfully executing 

the laws, protecting and serving. 

You’ve heard from Mr. Shaw. You’ll hear from Mrs. Durden. Sitting behind me today is my chief deputy Wes Nance, who is in 

charge of prosecuting crimes against children. And one of the 

things that we have learned in prosecuting those types of crimes 

is that three elements really are the key to successful law enforcement. And I believe that Mr. Gowdy’s bill helps accomplish those 

three things. And that is it enhances the communication, cooperation, and coordination of all dedicated law enforcement officers who 

are trying to protect and serve. 

If we do not have the communication and coordination and the 

cooperation, then local law enforcement is handcuffed. Every day 

across courthouses in each State, in each town, in each hamlet, in 

each little city there will be a commonwealth’s attorney or a district attorney, a victim witness advocate sitting somewhere explaining to a family why a tragedy has happened to their loved one. In 

the context of crimes against children we have learned that we can 

cooperate with our Federal colleagues. We can create a seamless 

web of protection to protect children from Internet predators, to 

work alongside of and in cooperation with ATF in enforcing firearm 

laws, with the Drug Administration in enforcing narcotics trafficking and working in multidisciplinary task forces that involve 

local, State and Federal. This isn’t an either/or solution, but it has 

to be a purposeful solution. 

In our county, in Bedford County, also sitting behind me today 

is Mr. Gary Babb. Mr. Babb was a sheriff’s deputy, the sergeant 

of detectives in Bedford County. His son Adam was struck and 

maimed by a drunk driver that was an illegal alien. This particular 

driver, Mr. Ramos, had previous convictions for driving suspended 

and manufacturing false driver’s licenses. At the time he struck 

Adam Babb, it became his second DUI conviction. 

This bill, if in effect and if that situation happened again, someone like Mr. Ramos would be deportable. In my written testimony 

I indicated that at the time that Mr. Ramos may not have been deportable. I have since learned, just today, he may have in fact have 

been deported. And the reason that I indicate that, part of the 

issue is between local and Federal enforcement is those communication channels where we can obtain the information that we 

need that when we sit down with those victims and we explain to 

the families what has happened to the offender, when will they be 
37 

released, anything that can assist us to provide that closure, to provide that information would be of great assistance to local law enforcement. But again the key elements are communication, coordination, and cooperation. 

I believe that this bill gives us the opportunity to do that. As a 

commonwealth’s attorney, as a prosecutor, it is just much as my job 

to clear the innocent as it is to convict the guilty. And I believe 

that all dedicated prosecutors who operate from that ethical paradigm share that view. Nothing prevents local, State, and Federal 

agencies working together in cooperation, but the first step is to 

fully fund and fully man the personnel at the Federal level who 

have the primary responsibility to do that. 

This bill would allow that to be done. It would also allow the 

local and State prosecutors, law enforcement, and other dedicated 

professionals to work alongside. One of the key interests for prosecutors is that it would provide training and education and the 

ability to learn and to work alongside. 

So, Members of Congress, it is my humble request that you consider this bill and note our support for it. Thank you. 

Mr. GOODLATTE. Thank you Mr. Krantz. 

[The testimony of Mr. Krantz follows:] 
38 

COligress of the United States 

1·louse of Rl'prese!lIa\iveIi 

Ctl>mmillc¢ on the Judiciary 

Bob Goodlalle, Chairman 

The Testimony of 

The Honorable Randy C Krantz 

Commonwealth's Anomey 

Bedford County 

123 East Main Street 

Bedford, VA 24523 

The Strength and Fonify Enforcement Act (H R. 2278) 

June 13, 2013 
39 

Good afternoon. Thank you, Chainnan Goodlatte, Ranking Member Conyers, and all the 

members of the committee for the opportunity to speak with you today My name is Randy 

Krantz I am the Commonwealth's Attorney for Bedford County, Virginia and have been 

prosecuting for 21 years with a concentration in violent crimes. 

It has been said, all politics are local. Likewise, all crimes are local; including crimes 

committed by illegal immigrants. Interior immigration law enforcement is a pressing issue not 

only for Virginia, but all states and communities. There is one specific area that I would like to 

address: the local community impact and risk of forgoing the deportation of illegal immigrants 

who are chronic criminal offenders 

Often, we hear news stories about illegal immigrants who are deported only after 

committing unquestionably heinous crimes, such as murder or rape. Prosecutors see illegal 

immigrants pass through the criminal justice system for less serious crimes that still pose a 

significant risk to public safety Specifically, illegal immigrants continue to endanger society 

after adjudication because they are too often released directly back into the community. This is 

one reason why H.R. 2278 is so important: it will strengthen local law enforcement and 

prosecutor's ability to protect and serve their jurisdictions through enhanced communication, 

cooperation, and coordination with our Federal colleah'lleS 

One of the most prevalent scenarios we are faced with in our communities are sex crimes 

committed against children. The U.S. Department of Justice via financial and logistical support 

to local communities has helped establish state-wide and regional task forces where local law 

enforcement is better positioned to identify, apprehend, and prosecute sex offenders. H.R. 2278 

would greatly enhance our capabilities by barring entry of illegal immigrant sex offenders who 

fail to register as required by law. 
40 

Another prime example of local community endangerment is the crime of DUr (Driving 

Under the Influence) lIIegal immigrants who are repeat DUI offenders are permitted under 

current law to stay in the United States, only to continue to drive under the influence of alcohol 

and kill or seriously injure innocent people 

The consequences are tragic, but preventable In 2007, Adam Babb was struck 

head on in Bedford County by a drunk driver named Abel Ramos. Mr. Ramos is an illegal 

immigrant who was a convicted Dur offender. Additionally, Mr. Ramos had prior convictions 

for driving with a suspended license and manufacturing counterfeit Virginia driver's licenses. 

Adam sustained extensive injuries, including a torn aorta and ruptured intestines, which would 

have proven fatal but for expert medical care. Adam also sustained nearly one million dollars in 

medical expenses as a result of 80 days in the hospital and elbow reconstruction surgery. 

Even with Adam's extensive injuries and Mr. Ramos' subsequent conviction for driving 

under the influence and vehicular maiming, Mr. Ramos was not eligible for deportation. 

Some of the members may also recall a local story from August I, 2010 when Carlos 

Montano, an illegal immigrant, struck and killed Sister Denise Mosier in Prince William County 

while driving under the intluence of alcohol. Notably, prior to this incident, Mr. Montano was 

arrested twice for driving while intoxicated and was even reported to federal immigration 

authorities. Yet, Mr. Montano remained in the United States because immigration officials were 

unable to deport him. 

Similarly, in Virginia Beach on March 30, 2007, illegal immigrant Alfredo Ramos struck 

and killed 17-year-old Alison Kunhardt and I6-year-old Tessa Tranchant; Mr. Ramos' blood 

alcohol content was three times the legal limit at the time of the crash. Unsurprisingl y, Mr. 

Ramos was no stranger to law enforcement. Before the crash, he had been arrested three times, 
41 

including charges for DUI. 

These stories are just a glimpse of the problems we face in Virginia and 

communities across the United States because of repeat offenders who are illegal immigrants. If 

HR2278 had been in effect at the time of each of the above defendants' final convictions, they 

would have been eligible for deportation and would not have posed a continuing threat to the 

safety of our citizens. The furtherance of any goal is met with hard work and detennination, but 

moreover it is done by the utilization of available tools In order to confront the dangers 

associated with illegal immigrants who are repeat offenders and hann innocent Americans and 

the criminal justice system; local authorities must be allowed to act. As a Commonwealth's 

Attorney, it is of paramount importance to allow us to protect and serve our fellow citizens and 

keep our communities safe. 

The SAFE Act will significantly strengthen the ability of the dedicated local, 

state, and Federal law enforcement officers and prosecutors to collaborate with each other in 

fulfilling our duties to our fellow citizens. 

4 

Thank you, 

Randy C Krantz, 

Commonwealth's Attorney 

Bedford County, Virginia 
42 

Mr. GOODLATTE. Ms. Durden, welcome. 

TESTIMONY OF SABINE A. DURDEN, 

MOTHER OF DOMINIC DURDEN, MORENO VALLEY, CA 

Ms. DURDEN. Thank you. Mr. Chairman, thank you for the opportunity to testify today. 

Mr. GOODLATTE. Yeah, hit the button on the microphone there. 

Ms. DURDEN. Mr. Chairman, thank you for the opportunity—— 

Mr. GOODLATTE. Pull it closer to you as well. 

Ms. DURDEN [continuing]. To testify today. Thank you. 

Last year around this time, my life seemed very normal and ordinary. My only child Dominic, my best friend, my rock and support 

system, shared a house, the bills and responsibilities. We enjoyed 

each other’s company and in 30 years were never apart for longer 

than 3 weeks. He brought nothing but pure joy into my life, and 

I so loved just being Dom’s mom. 

He was born on January 22, 1982, in Germany. At the age of 10, 

we moved to the USA and adapted very well to our new lives here. 

I was a German immigrant myself and became a U.S. citizen. 

Dominic enjoyed the ROTC program and later got his private pilot’s license. He took an internship with a local TV station. He also 

volunteered with FEMA, the local emergency response force, and at 

different fire stations. In 2002 he received the Volunteer of the 

Year Award from the city of Moreno Valley for giving over 1,000 

hours of his time. 

Dominic was always a 4.0 student. He accumulated 87 letters of 

recommendations and 111 school and work award certificates, some 

of them from former President Bill Clinton and U.S. Senators 

Dianne Feinstein and Barbara Boxer. Dominic also received the 

2013 Presidential Award from CPRA, the California Public Safety 

Radio Association. 

Seven years ago he became a 911 dispatcher for Riverside Sheriff’s Department and worked a very tough and stressful job. He 

loved that challenging task, and every time he was on duty, the 

deputies out in the field would feel safe and in good hands. They 

trusted him and called him the best dispatcher around. 

His ultimate goal was to become a helicopter pilot for the Police 

Department. Law enforcement was his passion. His coworkers became his friends, and he was a huge part of their lives and families. His laugh and presence would light up a room. Life was great 

and so many more awesome things and wonderful events to come. 

But, however, life changed brutally and instantly on July 12, 

2012, at 5:45 a.m. My world as I knew it was torn into shreds and 

my heart ripped into pieces. My only child, the love of my life, the 

reason for being was taken from me in the blink of an eye. No 

words can describe the excruciating, deep, and agonizing pain you 

feel when you get that kind of call to tell you that your precious 

life that you brought into this world will not come home anymore. 

It’s difficult to explain to you what and how I feel of not having 

my incredible son around anymore. A home that was filled with joy 

and laughter is now an empty and quiet house, and the pictures, 

the locket with his ashes around my neck, and the precious memories are all I have left. 
43 

This is enough pain for a lifetime, but it gets much worse. I was 

informed that the driver of the truck that killed my son instantly 

was a 24-year-old from Guatemala here illegally without a license, 

without insurance or a legally registered vehicle, and on a probation from a prior DUI. And to add even more pain and grief, this 

guy had a lengthy arrest record and has been in and out of court 

and prison prior to this. 

Juan Tzun was arrested for grand theft and armed robbery in 

November 2008 and given 3 years probation. In August 2010, he 

was arrested for a DUI and a probation violation and given 3 more 

years of probation. In May 2012, he was arrested again on a DUI 

while on probation from the prior DUI and was given probation 

again. Less than 60 days later, he killed my son. 

Since 2008, Tzun had been given a free pass to do what he wants 

without consequences or actions from our laws. He knew he was 

unlicensed. He knew he wasn’t allowed to drive. But on July 12, 

2012, he did what he has been doing all these years, flaunting our 

laws. He hit and killed my son instantly, and all he got charged 

with was a misdemeanor for making an unsafe left turn. 

He was in jail for a short time, posted bail, and then taken into 

ICE custody, where he was granted bail by a Federal judge and 

walked out after paying $10,000. The man who risked everyone’s 

life unlicensed and illegal was free to continue to break all of our 

laws. 

At last month’s sentencing the judge read 16 impact letters that 

cried out for a tough sentence. Tzun was allowed to speak and took 

no responsibility, no ownership, showed no remorse, or offered any 

apology. He told us that God takes life, gives life, and he was simply on his way to work. He clearly showed all of us and the judge 

that he will continue to do what he wants without any regard for 

anyone else or the law. And still, the judge only gave him a measly 

90 days in jail with 5 years probation. 

I felt victimized all over and lost all my trust and faith in the 

system and the law. Everyone who has learned about the case also 

has expressed outrage and disbelief in how our system failed in 

such a huge way. My son did not have to die on that tragic day 

if the system and laws had been working. Tzun should have been 

deported immediately after his first arrest in 2008, but he wasn’t. 

He should have been detained and then deported after his first 

DUI, but he wasn’t. He should have been detained and deported 

after his second DUI, but he wasn’t. 

Why does the Department of Homeland Security protect illegal 

alien criminals? I have learned that my story and how I was treated is not exception, but the rule. I am now begging all of you to 

please make a huge impact in all of our lives. We can’t lose any 

more loved ones to unlicensed drivers who kill over 7,200 victims 

per year, of which 4,000 are killed by illegal aliens. 

The SAFE Act would help prevent this from happening to another family, another fine young person. The bill will improve immigration law enforcement so that more criminal illegal aliens will 

be removed from our communities and fewer will try to come in the 

first place. It will allow ICE to deport criminals quickly without 

waiting months or years for an immigration judge. The bill makes 

anyone who is convicted of two DUI offenses deportable. The bill 
44 

will give more resources to ICE to do its job. This is badly needed 

because ICE agents want to do their duty but they do not have 

enough officers and enough funding to deport the huge number of 

illegal alien criminals. 

Because illegal aliens have no fear of being caught and deported, 

they behave with a sense of impunity and lack of personal responsibility for their conduct and the safety of others. 

Finally, the bill would allow local governments and law enforcement agencies to assist ICE by arresting illegal aliens they encounter. If ICE had more funds for detention of criminals, then Tzun 

would not have been released on bond while awaiting trial and he 

would not have been a risk to others. Please don’t let one of your 

loved ones become the next victim. Please pass the SAFE Act this 

year. And thank you so much for letting me testify. 

Mr. GOWDY [presiding]. Thank you, Ms. Durden. And on behalf 

of all of us, we express our sympathy to you for your loss. 

[The testimony of Ms. Durden follows:] 
45 

Statement of Sabine A. Durden 

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

Last year around this time, my life seemed very normal and ordinary. 

Dominic and I were housemates for the past 8 years after his dad and I divorced. 

We shared bills and responsibilities, spent time together going to movies, riding 

our motorcycles or just relaxing at home with our dogs. We traveled together and 

for 30 years I was never apart from him for longer than 3 weeks. We were best 

friends and confidants, had the utmost respect and love for each other. 

Dominic was my only child, my best friend, my rock and support system, the one 

that I could trust 200%. For 30 years he brought nothing but pure joy into my life 

and I enjoyed every second of just being DOMSMOM. 

He was born on January 22, 1982 in Germany. When I held him for the first time, 

I knew there was something special about him. He grew up speaking fluent 

German and English, showed interest in just about everything but most of all, he 

was a very caring and loving person. He made friends very easily and had a 

compassion for others and always wanted to help everyone. He had such a zest 

for life. 

It was obvious to everyone that he would do great things and make a difference 

in this world. It was an adventure and pure joy to watch him grow up. 

At the age of 10 we moved to the USA and adapted very well to our new life here. 

I was a German immigrant myself and became a US citizen. 

Dominic was a 4.0 GPA student throughout his school years and we just knew he 

was on his way to do great things. No matter what Dominic did, where he went or 

who he talked to, people always knew they could trust and rely on him 100%. 

Dominic enjoyed the ROTC program and found his love of planes and later got his 

pilot's license. He took on an internship with the local TV station and received 

many awards for editing, producing and creating short films for public television. 

As if that wasn't enough, he also volunteered with FEMA, the local Emergency 
46 

Response Force and worked as a volunteer at different Fire Stations. In 2002 he 

received the "Volunteer of the Year" award from the City of Moreno Valley, for 

giving over 1,000 hours of his time. 

Dominic accumulated 87 letters of recommendations and 111 school and work 

award certificates. Some of them from former President Bill Clinton, and US 

Senators Dianne Feinstein and Barbara Boxer. 

Dominic also received the 2013 PRESIDENTIAL AWARD from CPRA (California 

Public Safety Radio Association) and Riverside Sherriff's Department created the 

DOMINIC DURDEN TOP 911 DISPATCHER AWARD that will be handed out every 

year. 

Seven years ago he became a 911 Dispatcher for Riverside Sheriff's Department 

and worked a very tough and stressful job. He loved that challenging task and 

every time he was on duty, the deputies out in the field, would feel safe and in 

good hands. They trusted him and called him the best dispatcher around. 

He studied to become a 911 training officer to help others in this line of work. 

Dominic also prepared to become a motorcycle cop, but his ultimate goal was to 

become a helicopter pilot for the Police Department. Law enforcement was his 

passion. 

His coworkers became his friends and he was a huge part of their lives and 

families. He enjoyed many trips and outings, baby showers and weddings. 

He was the ultimate prankster and his laugh and presence would light up a room. 

Life was great and so many more awesome things and wonderful events to come. 

However, life changed brutally and instantly on July 12, 2012, at 5:45 am. 

My world as I knew it was torn into shreds and my heart ripped into pieces. My 

only child, the love of my life, the reason for being, was taken from me in the 

blink of an eye. 

No words can describe the excruciating, deep and agonizing pain you feel when 

you get that kind of call to tell you that the precious life you brought into this 

2 
47 

world, will not come home anymore. You can't explain how deep you feel that 

unbearable pain, and how it takes your ability to breathe and move, to think and 

talk. How can you comprehend that you will NEVER EVER hear that voice and 

laughter, never feel a touch, hug or kiss from your child. 

It's difficult to explain to you, what and how I feel of not having my incredible son 

around anymore. A home that was filled with joy and laughter is now an empty 

and quiet house and the pictures, the locket with his ashes around my neck and 

the precious memories are all I have left. 

I have been robbed of having grandchildren and becoming a mother in law, his 

friends are without their best buddy and my family in Germany and I will never 

recover from this. 

This is enough pain for a lifetime, but it gets much worse. 

3 

I was informed that the driver of the truck that killed my son instantly was a 24 

year old from Guatemala, illegal, without a license, insurance or a legally 

registered vehicle, and on probation from a prior DUI. And to add even more pain 

and grief, this guy had a lengthy arrest record and has been in and out of court 

and prison prior to this. 

Juan Tzun was arrested for grand theft and armed robbery November 2008 and 

given 3 years probation. 

In August, 2010, he was arrested for a DUI and a probation violation and given 3 

more years probation. 

In May, 2012 he was arrested again on a DUI while on probation from the prior 

DUI and given probation again. Less than 60 days later he killed my son. 

Since 2008, Tzun had been given a free pass to do what he wants without 

consequences or actions from our laws. He knew he was unlicensed, he knew he 

wasn't allowed to drive. But on July 12, 2012 he did what he has been doing all 

these years .... flaunting our laws. He hit and killed my son instantly and all he got 

charged with was a misdemeanor for "making a unsafe left turn". Manslaughter 

WITHOUT gross negligence!!! 
48 

He was in jail for a short time, posted bail and then taken into ICE custody, where 

he was granted bail by a Federal Judge and walked out after paying $10000. 

4 

The man who risked everyone's life, unlicensed and illegal, was free to continue 

to break all of our laws. He ignored all of our laws and rules and is now protected 

by the same, while my son has no more rights and is dead. 

At last month's sentencing the judge read 16 impact letters that cried out for a 

tough sentence. The judge heard 3 people including me, begging for justice. 

Tzun was allowed to speak and took no responsibility, no ownership, showed no 

remorse or offered any apology. He told us that God takes life, gives life and he 

was simply on his way to work. He clearly showed all of us and the judge, that he 

will continue to do what he wants without any regards for anyone else or the law. 

And still the judge didn't give him the maximum 365 day jail sentence allowed, 

but a measly 90 days in jail with 5 years probation. 

I felt victimized all over and lost all my trust and faith in the system and the law. 

Letters of outrage and disbelief were sent to the judge and the presiding judge. 

The local newspaper, the Press Enterprise, ran an article about this and I spoke on 

a radio talk show about this injustice. People are outraged and in disbelief how 

our system failed in such a huge way. 

The judge, during a status hearing, admitted in front of a packed courtroom that 

he made the mistake of his career and will never do that again. 

Nothing will bring my Dominic back, but at least this judge has been moved 

enough to make a difference from now on. 

My son did not have to die on that tragic day if the system and laws had been 

working. Tzun should have been deported immediately after his first arrest in 

2008 but he wasn't. He should have been detained and then deported after his 

first DUI but he wasn't. He should have been detained and deported after his 

second DUI but he wasn't. 
49 

5 

Why does the Department of Homeland Security protect illegal alien criminals? 

They must have received a notice of both of Tzun's DUI arrests, because of Secure 

Communities, and yet they did nothing. 

I have learned that my story and how I was treated is not the exception but the 

rule. This happens over 10 times every day in this country. 

I am now begging all of you to please make a huge impact in all of our lives. This 

nonsense has to stop now; we can't lose anymore loved ones to unlicensed and 

illegal drivers who kill over 7,200 victims per year of which over 4,000 are killed by 

illegal aliens. 

The SAFE Act would help prevent this from happening to another family, to 

another fine young person. 

In general, the bill would significantly boost immigration law enforcement so that 

more criminal illegal aliens would be removed from our communities, and fewer 

would attempt to come in the first place, because it greatly increases the chances 

that they will be caught, detained, and removed much more promptly than is the 

case today. 

Specifically, it allows ICE to use "expedited removal" to deport criminal aliens, 

which means they are detained and quickly removed without having to wait 

months or even years for an immigration judge to give them a hearing and order 

them removed, which they then appeal, or ignore. With expedited removal, the 

criminal alien is gone from the U.S. in a matter of days. 

The bill makes anyone who is convicted of 2 DUI offenses deportable, so if ICE had 

missed Tzun on the grand theft, then they could have the DUI offenses as grounds 

for deporting him. 

Under the terms of the bill, ICE would be required to take custody and remove 

any criminal alien turned over to them by local sheriffs and police. I am quite sure 

that the Riverside County Sheriff's Department would turn over almost every 

single criminal alien they arrest, especially the felons. 
50 

The bill authorizes more resources for ICE to do its job. This is badly needed, 

because ICE agents want to do their duty, but they do not have enough officers 

and enough funding for detention space to deport the huge number of criminal 

aliens. ICE estimates that there are about 2 million criminal aliens in the country 

today, either in jailor at large, and they only remove about 200,000 to 250,000 

each year from the interior of the country. That's a drop in the bucket. Because 

illegal aliens currently have no fear of being caught and deported, they behave 

with a sense of impunity and lack of personal responsibility for their conduct and 

the safety of others. 

Finally, the bill would allow local governments and law enforcement agencies to 

assist ICE by arresting or taking action against illegal aliens they encounter when 

doing their daily work. This would be a huge help to ICE, which only has so many 

agents, many of them are far from the communities with the problem. 

If ICE had more funds for detention of criminals, then Tzun would not have to be 

released on bond while awaiting trial, and would not be a risk to others. 

Don't let one of your loved ones become the next victim. Please pass the SAFE 

Act this year. 

Thank you for inviting me to testify today. 

Sabine A. Durden 

Moreno Valley, California 

June 13, 2013 

6 
51 

SUPPLEMENT 

The untimely death of Dominic Durden, 3D, is particularly troubling since it exposes so many of the 

problems not only with our criminal justice system but with our DUllaws, unlicensed driving laws and 

how we deal with illegal aliens even after they have committed serious crimes. 

Dominic was a sheriff dispatcher with the Riverside Sheriffs office but as with so many of these cases 

the story is really not about Dominic. The story is about all ofthe victims who should be alive today if 

the people we give the responsibility to protect us just do their jobs. Nothing heroic, nothing life 

threatening to them just doing their job is ail it will take. 

Juan Zacarias Tzun was an illegal alien from Guatemala. On November 27, 2008 he was arrested for 

robbery and grand theft, both felonies. He pled guilty to the grand theft charge and the robbery charge 

was dropped. He was sentenced to 3 years' probation. Why wasn't he deported? 

While still on probation on August 20, 2010 he was arrested for driving under the influence and driving 

under the influence with a BAC of .08 or higher, both misdemeanors. He was also given an infraction for 

failure to pay part of a fine under the grand theft charge. He was driving without a license but was not 

charged and his car was not impounded. He pled guilty to both charges and was sentenced to 3 years' 

probation. Why wasn't he deported? 

While still on probation he was arrested on May 13, 2012 for driving under the influence, driving under 

the influence with a BAC of .08 or higher, driving without a license, driving with a prior DUI and refUSing 

a chemical test, all misdemeanors. He was also given an infraction for driving while on probation for a 

DUI BAC equal to or greater than .01. His car was not impounded. He was released on $5,000 bail 

pending his hearing for all of the latest charges. Why wasn't he detained by ICE and deported? 

While out on bail and still waiting for his hearing date for his May 13, 2012 arrest on July 12, 2012, two 

months later he killed Dominic Durden. He was charged with vehicular manslaughter without gross 

negligence and driving without a license, both misdemeanors. He is currently out on bail. ICE did detain 

him and a judge set bond at $10,000. He paid it in full and is out on bond. He is clearly a flight risk but 

seems to have no fear of "the system". Why was he allowed out on bail and why did a judge grant him 

bond on his detention. 

Has he not caused enough grief? Do we need to make this story worse when he kills again? Is our 

system so broken that we can't identify or refuse to recognize bad people? 
52 
53 

Mr. GOWDY. Ms. Tumlin. 

TESTIMONY OF KAREN C. TUMLIN, MANAGING ATTORNEY, 

NATIONAL IMMIGRATION LAW CENTER 

Ms. TUMLIN. Chairman Goodlatte, Ranking Member Conyers, 

and Members of the Committee—— 

Mr. GOWDY. You may want to make sure the green light’s on, on 

your microphone. Is it on? 

Ms. TUMLIN. How about now? 

Chairman Goodlatte, Ranking Member Conyers, Members of the 

Committee, it’s my pleasure to be here today. Thank you for this 

opportunity to discuss the SAFE Act and why it would have serious 

and far-reaching negative consequences if enacted. 

The SAFE Act, if enacted, would radically change the laws and 

policies governing immigration in the United States. I want to 

focus on three key ways that it would do that. First, it would obliterate Federal oversight and control over our Nation’s immigration 

policies. Secondly, it would put into the hands of State and local 

jurisdictions the ability to detain, essentially without limit, potentially indefinitely, individuals based solely on suspicion that they 

might be removable from this country. Third, it would radically increase detention for nothing more than civil immigration violations. 

The impact of these changes would be nothing short of disastrous 

on American families and communities. It would lead to patterns 

of unjustified and unconstitutional detentions, as well as patterns 

of unconstitutional racial profiling based merely on one’s appearance or the fact that they may speak with an accent. 

What I would like to do is focus on just two provisions in the 

SAFE Act and explain them a little bit. Of course I am happy to 

answer any questions that the Committee Members may have 

afterwards. 

So first, the SAFE Act would allow not only every State, but also 

any locality within the State to pass civil or criminal laws so long 

as those laws mirror Federal immigration law. This would not be 

a patchwork of 50 State immigration regimes. It would be literally 

thousands upon thousands of different regimes. Make no mistake, 

and let’s be clear about this: This is not cooperation of State and 

localities with Federal officials in terms of enforcing immigration 

law. It puts States and localities in the driver’s seat and the Federal Government in the back seat. 

I want to give you an example of how this plays out. A couple 

of years ago, Georgia tried to do exactly this, and we sued them 

in court. They passed a State criminal penalty to criminally prosecute individuals who were harboring or transporting undocumented individuals. They said, this mirrors Federal law, we can do 

it. 

However, when they were defending that law in court, they made 

clear that they intended to prosecute U.S. citizens, teenagers who 

were driving their mother to the grocery store to get milk. And so 

the question before the Committee is: Is that good policy? Does that 

make sense? Do we want to prosecute overnight everyday acts of 

kindness by U.S. citizens to their family members? 

The second provision I would like to highlight has already been 

referenced this morning in opening statements. It’s a provision that 
54 

we’ve seen before. It just takes a different form. This provision 

would overnight allow for criminal penalties, criminal prosecution 

against the 11 million Americans in waiting who are undocumented now and members of our communities and our families. 

And again, the question is: Do we want to criminalize that mother? 

Do we want to spend precious resources detaining and deporting 

people who are part of our communities and part of our families? 

We don’t have to guess at what would happen when you give this 

kind of immigration enforcement power to State and local governments. The evidence is piling up. Again, it’s referenced in the written testimony. It’s been referenced this morning. We see it in Federal finding after Federal finding, from the Department of Justice 

against the 287(g) programs that were run by Maricopa County 

and Alamance County. 

We also have seen it as the State efforts to implement their own 

immigration laws have taken effect. And, again, I’ll give you an example. This one is from Alabama. When Alabama’s racial profiling 

law was allowed to take effect, we staffed a hotline with our legal 

partners to take calls from individuals about what was happening. 

And what we heard was story after story after story of individuals 

who were being stopped based nothing more on their skin color. 

I would like to urge the Committee to reject this wrong-headed 

and single-minded approach to the deep issues in our immigration 

system. 

Mr. GOWDY. Thank you, Ms. Tumlin. 

[The testimony of Karen Tumlin follows:] 
55 

• NA TIONAl 

IMMIGRATIO 

W N 

Tl'5 timony of Kltn .. n C Tu mlin 

M:wnging Attorn ty, NationMI Immigrntion L:tw Center 

Suhmined to the o,,~e Cllmmiuee lin the Judiciary 

Il t Nri ng on .1.R.127E. Strengtht n lId Fortify Enforccment Ad 

June 13. 201l 

Chainllan Goodla ltt'. Ranking Member Conyers. and n1en1bl'~ of the Comminee, thank 

you for Ihe opponunlty to share Ihe Nalional Immigration Low Center's perspectives on H.R. 

2278, the Strengthen and Fortify Enforce1llent (SAFE) ACI. The National lmmi!!ration l aw 

Center INILe} is B nonpanisan orga-'1il.Blion e.~clusi\"ely dedielltcd to defending Hnd advancing 

the rights oflow-income immigrantS and their lamilies, We conduCi policy analysis. advocacy. 

3nd implI~t litiSaliol1, as well as prelvide training. publicatiuns. and technical ass:istance IbI" a 

broad range of groops throughout the United States Since its inception in 1979. NILe has 

eHm~-d a national T1.'pUl3tion as a leading e.~pt'n on lh~ imer!ICClioo of immigration law and the 

myriad federal and Slate policies impacting lhe rights Bnd responsibilities of low-income 

immigrams. NllC has worked nationally to advance the due proce$S and constitutional rightS of 

low-income immigrants. Policymak-ers. fQi lh 3nd community-based urgltnizations. ll-ga1 aid 

attorneys. government agencies. and the media rccO'$nize NILC stafT as el1 pens on a wide range 

of issues thai affect the lives of immigrants in the United St~les and frequently call Uporl us to 

esplain th~ real·life impact ofimmigr"3tioo-relaled laws and policies. Over the last decade, Nile 

has liliH8led and challenged cfforts to devolve federal immil!f1llion authority \0 slate and local 

law l'l1forct'1llCl1t officials, including stale elrons to creale dleir own immigr~ ion enforcel1l~1I1 

regimes. 

Onrvifw 

While. Nll C respects Ihe views of Chainncn GoodiSHI' Bnd Gowdy snd others who have 

Spollwrl'<l the SAFE -Act. we beliuvc il is the wrong approach to reforming Ihe nalioo'S 

immigratiOll system. The SAFE A.<:t ~i ngle-mindedly focuses on immigralion enfotCement 

without foxing the legal immigration Sy$tem'$ problems. II is ,oJidely recogniled that now is the 

lime for comlnonsense refomt that creates a road III citizeuship for unauthorized imntigrants hnd 

addresses the country's needs for an immigration S)'stcm that strengthens families and bolsters 
56 

Testimony of Karen C. Tumlin 

June 13, 2013 

the economy. An enforcement-only approach to immigration will not solve the current problems 

with our immigration system-problems that we can all agree upon-and this bill proposes only 

more of the same. Even more troubling, the SAFE Act, if enacted, would radically alter the 

nature of federal immigration enforcement by vesting enforcement decisions in the hands of state 

and local actors without federal oversight. NILe's tirsthand experience with laws and policies 

similar to the SAFE Act have convinced us that it will create an environment of rampant racial 

protiling and unlawful discrimination and breed distrust of law enforcement, which decreases 

public safety 

The bill would grant unprecedented immigration enforcement powers to states and 

localities. 

The bill is tilled with provisions that, if enacted, would cause widespread harm by 

creating an environment of discriminatory and unjustified detentions, decreasing trust in local 

law enforcement and compromising public safety, and squandering taxpayer money. Among the 

worst are those provisions in Title I that would fundamentally change the nature of immigration 

enforcement by taking away federal direction and control over the nation's detention and 

deportation policies. Taken together, the provisions in Title I put states and localities-even 

individual law enforcement officers-in charge of immigration while leaving the federal 

government in the back seat. The bill allows the states, and even localities within states, to create 

and implement their own immigration policies. The bill stops short, only, of allowing localities 

to actually remove noncitizens from the country.l This legislation fails to recognize the 

fundamental benetit-indeed the necessity-of having a uniform, national immigration policy, 

including the impact of immigration policy on foreign relations 2 Critically, the federal 

government has discretion to prioritize its immigration policies and practices-including to elect 

not to remove some noncitizens. To remove every noncitizen currently in the country without 

status would be economically impossible, and the human impact of such a policy would be 

devastating. By allowing states to enforce and prioritize immigration law as they see fit, this bill, 

if enacted, would strip the federal government of the ability to enforce immigration law 

uniformly and in a way that balances the nation's interests in providing humanitarian relief and 

enforcing the rule oflaw 

For example, the bill allows states or political subdivisions of states to create their own 

criminal and civil penalties for federal immigration violations so long as the penalties applied do 

not exceed those under federal law. Although this may, at tirst blush, look like nothing more than 

an attempt to allow states to pass criminal and civil penalties that mirror federal law, this 

provision would be disastrous for a host of reasons. First, it would directly overturn the Supreme 

Court's decision last term in Arizona v. Uniled Siale.\', 132 S. Ct. 2492 (2012), that states cannot 

1 See Section 102(b) 

2 Arizona v. Un;[cd S'tatt's. 132 S. ('1. 2492.2'+98 (2012) Clt is fundamental that foreign countries concen1ed about 

the stalus. safely. and security of lheir nationals in the United Slates mUSl be able to confer and communicate on lhis 

subject WIth one national sovereIgn. not the 50 separate States.") 
57 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

enact their own criminal alien registration penalties on top of the federal scheme. In reaching that 

conclusion, the Court's majority emphasized the importance of the nation speaking with one 

voice on immigration matters that inherently impact trade, investment, tourism, and foreign 

relations. See Arizona 1'. United States, 132 S. Ct. 2492, 2498, 2502 (2012). Indeed, this 

provision contemplates the piling of state or local criminal penalties on top of possible federal 

penalties. There is nothing in the text of this provision that would stop a state or locality from 

prosecuting a person who has already been convicted under federal law or the federal 

government from prosecuting a person who has already been convicted of an immigration 

offense under a state or local law. 

Second, when Georgia passed a law imposing criminal penalties for harboring or 

transporting undocumented immigrants, NILC, along with other civil rights organizations, 

challenged that law in court. During that case, the state of Georgia made clear that it intended to 

prosecute teenage drivers-U. S. citizens-for taking their undocumented moms to the grocery 

store for milk as vigorously as those transporting scores of undocumented immigrants for 

financial gain3 This stands in stark contrast to the way in which the federal statute is prosecuted. 

Although the provision attempts to limit state or local prosecution to "the same conduct that is 

prohibited" under the federal immigration laws, there is nothing in the text to ensure that local 

prosecutions are actually so limited and, as the Georgia example shows, the localities wishing to 

enact these laws have radically different notions of what the federal law does or should 

criminalize. 

In addition, the SAFE Act would allow states and political subdivisions of states to 

"investigate, identify, apprehend, arrest, detain, or transfer to federal custody" a noncitizen in 

order to enforce any federal immigration violation-civil, or criminal, or any state immigration 

penalty allowed under this bill. This is an unfettered delegation of immigration authority to 

localities, allowing them to arrest and detain people based on nothing more than suspected civil 

immigration violations. If enacted, this provision would overturn another portion of the Supreme 

Court's Arizona decision, which found that states lack the authority to detain people based solely 

on suspicion of that they are deportable. Arizona, 132 S. Ct. at 2507. In that opinion, the 

Supreme Court held that detaining people based on nothing more than suspicion that they have 

committed a civil immigration violation would raise constitutional Fourth Amendment concems, 

because such detention would lack the requisite criminal probable cause. Id. at 2509. This 

provision is breathtaking in its scope and a recipe for chaos in application. In terms of scope, this 

would allow every state or local law enforcement officer in the country to make arrests based on 

nothing more than their opinion that someone lacks authorization to be in the country. This 

provision invites chaos because immigration law is notoriously complex and the determination of 

whether an individual is inadmissible or deportable is not a decision local officials are fit to 

make. Local officers with minimal training in immigration law-and armed with the pocket 

guide contemplated under the SAFE Act-cannot be expected to implement federal immigration 

3 Transcript of Preliminary Injunction Hearing at 29-30. Georgia Latino Alliance for Human Rights v. Nathan Deal. 

ct.. a1.. 2(1] 1 WL W02751 (ND. G.A. 2(07) 

3 
58 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

law appropriately or uniformly. They cannot be expected to know which convictIOns make 

someone deportable and which do not, nor whether a person is eligible for one of the numerous 

forms of immigration relief available under federal law. 

Another section of the bill allows state or localities to detain people for 14 days after the 

completion of their prison sentences, to effectuate a transfer to federal immigration authorities 

"when the alien is inadmissible or deportable." Here again, this unprecedented and 

unconstitutional expansion of detention authority hinges on an untrained local officer's 

determination of whether a person is inadmissible or deportable. 

This provision also allows state or local oftlcers to issue their own detainers to hold 

noncitizens, when the underlying state or local detention authority has ended, until the federal 

government sees fit to come and get them. The provision provides for no limit on the length of 

that detention, nor does it require that the noncitizen against whom the detainer is issued be 

prima facie removable or ineligible for immigration relief. For neither of these provisions is there 

any indication that the state or local officers must establish probable cause to hold the person for 

these extended periods of time, or even indefinitely. And there is certainly no suggestion that 

they need to go before a judge to justify the two-week-plus detention based solely on the local 

oftlcer's belief that the person might be removable on federal administrative grounds. 

If enacted, these provisions will exacerbate the existing problems with the use of 

immigration detainers. Currently, federal detainers are voluntary requests by federal immigration 

authorities to hold individuals brietly (for 48 hours, not including weekends or holidays) at the 

expiration of their state or local custody. These detainers are voluntary and time-limited for good 

reason. As a most basic matter of liberty, the Constitution does not permit that people be 

detained without an individualized and articulable basis in law-which is why this detainer 

authority is strictly limited. Moreover, federal detainers already do not require the individualized 

review by a magistrate that is required to issue a criminal detainer-another reason why these 

detainers are used only for brief custody extensions. Presently, federal oftlcials use detainers to 

cast a wide net to ask state and local oftlcials to hold individuals even before they have 

determined that they wish to institute removal proceedings against them. In many cases, even 

after a detainer is issued the federal authorities opt not to initiate removal proceedings or detain 

the person. Worse, the federal government has also inappropriately issued hundreds of 

immigration detainers against U.S. citizens4 Last, even under the current detainer system, scores 

of local jurisdictions have repeatedly held people beyond the constitutional 48-hour boundary5 

'See Ian Gordon. "ICE Cold. U.S. Citizens Gettlllg Caught in Ilmnib'Tation Dragnet." Mother Jones, Feb. 21,2013. 

http://www.motherjones.com/mo j 0/20 1 J/02/ice-detaining -noneriminals-american -eitizens~ 

5 lIarvey v. Ofy of ,v ell' York. No. 07-0343 (Oel. 30, 200H) (pJaintiiT a"arded $145.000 in damages [rom the City or 

New York for violation of the 48-hour time limit): Ocampo v. Gusman. No. 10-04309 (Nov. 15.2010) (minute order 

granting writ orhabcas pelition orpclilioncr Antonio Ocampo, held 95 days on an c:\pircd immigration detainer): 

Cacho et al. v. Gusman. No. 11-225 (E.D. La. filed Feb. 2, 2011) (civil rights action for damages based on violation 

of the 48-hour time period): Quezeda v. Mink e/ af .. No. 10-879 (D. Colo. filed Dec. 12. 2010) (same): Florida 

fmmixranl Coalition e1 af. l'. fJraci\'hwl'. No. 09-H12HO (S.D. Fla. filed Sept. 3, 2(09) (same)~ Ramos-.Hacario v 

4 
59 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

This bill attempts to legalize this detention. The fact that so many localities have used detainers 

as a basis to engage in inappropriate over-detention of individuals makes a separate provision of 

the bill particularly troubling. The SAFE Act also prohibits states and localities from doing 

anything to interfere with compliance with immigration detainers. This would prohibit local 

policies that have limited the use of immigration detainers in order to ensure, among other 

things, that noncitizens are not unlawfully detained in their jails. 

The bill would lead to widespread racial profiling of Latinos and others whom law 

enforcement snspect of being foreign-born. 

We do not have to guess at the consequences of giving states and localities the kind of 

far-reaching immigration power that is contemplated under this bill. No matter how you slice it, 

devolving immigration authority to state and local officials results in pattems of racial profiling 

and unconstitutional detention. Moreover, state efforts to impose their own state immigration 

schemes have driven out businesses," led to crops rotting in the fields,7 and promoted an 

environment of racial profiling of Latinos and others presumed to be foreign-bom 

For years the delegation of federal immigration authority to state and local law 

enforcement otllcers under the federal 287(g) program has been widely criticized because these 

local officers are inadequately trained and are not supervised in the manner that would be 

necessary to ensure that they properly apply the complex federal immigration law and do not, 

instead, engage in tlshing expeditions based on nothing more than skin color and English 

fluency. Today we have substantial evidence showing that the devolution of immigration 

authority to localities under the 287(g) and similar programs has led to massive racial protlling8 

Investigations have revealed that local police forces operating under the federal 287(g) program 

have engaged in campaigns of racial prot11ing of Latinos. Just last month, a federal district court 

in Arizona issued a stinging 142-page opinion tlnding unequivocally that the Maricopa County 

Sheriff's Office has engaged in a pattern of racial protlling and of unjustitled detentions. OrfegaMelendres, et al. v. Arpaio, ef aT. No. PHX-CY-07-02513-GMS, 2013 WL 2297173 (May 24, 

2013)9 

Jones el al .. No. 10-813 (M.D. Tenn.llled Sept. 28. 20lO) (same): Rim, v. Marlin el al .. No. lO-l97 (N.D. Ind. filed 

Jlme IG. 2010) (same) 

(', "Alabama -s Immigration La\v' s Price Tag'? Up to $11 billion. says economist,-- AI.com. 

http://blog. al com/businessnews/20 1210 I lalabama _lllmugratlOn_law _ hannfu.hunl 

/)'ce --Georgia's Farmers Losing Millions Due to Anti-Inllllignmt La\v." Fox Vell's Latino. 

http://latino.foxne\ys. com/latino/espanol/20 11 II O/OS/georgia -fanners-losing -millions-to-anti -migrant -law 

, See also Trevor Gardner II and Aarti KoHli, "The c.A.P. E1Teet· Racial Profiling in the ICE Criminal Alien 

Program, ,- ThE' Warren Institute _ Sept. 2009 (finding finds strong endence to support claims that local police 

engaged in racial profiling of Latinos after they were granted access to a federal immigration screening program in 

order to Iilter arrested Latinos through Ihe system). 

http://www .law .berkeley .edu/filesJpolieybrieC irving_FINAL .pdf. 

':l See the decision in OrlcX(J .Ale/endres, et al. v. Arpaio, eI al .. May 24.2013, aclu.org/racial-justicc/ortcgamelendres-et-al-v-mpaio-et-al-decision 

5 
60 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

The facts found by the court in the Maricopa County case are nothing short of startling. 

In reaching its finding that the Maricopa County Sheriffs Office (MCSO) engaged in a pattern 

of racially profiling Latinos under the guise of implementing immigration law, the court 

analyzed arrest records and found that "71 % of all persons arrested, had Hispanic surnames." Jd. 

at 73. As the court noted, this high "arrest rate occurred in a county where between 30 and 32% 

of the population is Hispanic, and where, as the MCSO's expert report acknowledges, the rates 

of Hispanic stops by the MCSO are normally slightly less than the percentage of the population 

that they comprise." Id. The court found even more stark patterns of racial profiling when 

considering the arrests of Latino passengers. ld. The court found that between 95 and 81 percent 

of passengers arrested had Latino surnames. Id. 10 

And Maricopa County, sadly, is not an outlier when it comes to jurisdictions where 

systematic profiling and unconstitutional detention of Latinos has been documented under the 

guise of immigration enforcement. The U.S. Department of Justice (DOJ) terminated the 287(g) 

agreement with Alamance County, North Carolina, after finding that its sheriffs office engaged 

in a pattern of racial profiling and unconstitutional detentions of Latinos. 11 DOJ uncovered that 

Alamance County deputies regularly arrested Latino drivers for minor intractions while issuing 

only citations or warnings to non-Latinos, and that the sheriffs office leadership explicitly 

instructed deputies to target Latinos for discriminatory enforcement, including the targeted use of 

jail booking and detention practices. And, in recent years, reports of local law enforcement 

discriminating against or even extorting Latinos or those they presume to be foreign-born have 

become all too common. l2 

A handful of states have followed Arizona's lead and passed laws requiring or 

authorizing local law enforcement officers to verify the immigration status of people they 

lawfully stop when they have "reasonable suspicion" to believe the person lacks immigration 

status. Alabama's law was the first of these to take effect, and the result there reveals the same 

pattern of racial profiling. For example, shortly after the law took etfect a woman married to a 

U.S citizen was arrested for driving without her lights on and was forced to spend two nights 

10 Ortega AIi!lendrl!s order at p. 73 "According to the large-scale saturation patrol arrest reports, 18-1- passengers in 

,;/chicles \vcrc arrested on some charge other than the traffic prc-tc~i giYcn for stopping the vehicle. 175 of these 

passengers, or 95%, had Hispanic SUTIlamcs. Even removing all ofpasscngcrs who Vv"crc arrested on illlIlligraLion 

charges from the equation (141 total, 140 Hispanic), 35 of the 43, or 81 % of the passengers arrested on 

nonimmigration charges had Hispanic surnames. Only nine passengers \vho did not have a Hispanic surname \\'ere 

ever arrested on any charge." 

11 Department of Justice. "Justice Department Releases hl\'estigative Findings on the Alamance County. N.C., 

Sheriff's Office." Sept 18. 20 12, i11InJ1Y":l\~,1l!,ti(:,.gQ}'!'Q]2aLmR()1 ~iSgJlgrnher! I :c:m,l12~Jltml. 

12 SO! Peter Applebome, Police Gang Tyrannized Latinos, Indicttnl!f1t Says, N.Y. Times, Jan. 2-1-, 2012. 

http://www.nytimcs.com/20 12/0 1/25/nyregi on/connecti cut -po Ii ce-o rt1 ccrs-accused -0 r-mi slreat in glatinos.html?page\vanted=all&_r=O (In East Haven. COlUlecticut, an FBI investigation revealed the city police 

officers had systematically stopped and detained Latinos, and particularly immigrants, without reason), Patsy 

Bmmfield, Rock admits illegal trq/fic stops as Peru (?fficer, DJ Journal, Northeast Mississippi Ne\vs, Feb. 27, 2013, 

http://djoumal.com/vicw /lu11_ story /21827 4 7 4/articlc-Rock -admils-i11cgal-lralTic-slops-as-Ecru-olliccr (olTicer 

extorted money from innnib'Tants after conducting illegal stops) 

6 
61 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

away from her toddler while her immigration status was verified. 13 This mother is currently in 

the process of adjusting her immigration status. In another example, a group of Latino men were 

stopped while walking home from work. A police otllcer stopped them without providing any 

basis for the stop and demanded "papers" from them. One of the men produced his valid North 

Carolina driver's license, and the police oilicer grew angry and told him that he thought his 

license was fake. 1.1 

The 2S7(g) Expansion is lJ nnecessary and Counterproductive. 

The documented abuses in the 287(g) program occurred despite the fact that the federal 

government has elected not to issue 287(g) agreements for every jurisdiction that seeks one, in an 

effort to ensure some level of proper oversight of the local 287(g) deputized otllcials. And, even 

during this time, federal study after federal study has revealed that the 287(g) program has lacked 

sutllcient oversight and controls to prevent against abuses 15 Despite 287(g)'s dreadful track 

record, the SAFE Act would dramatically expand the flawed program by mandating the federal 

government to enter into new 287(g) agreements any time a state or locality so request unless 

there is "good cause" not to do so. Moreover, the locality-not the federal government-has 

control over the type of 287(g) agreement the locality receives roving, patrol, or jail 

enforcement. Without question, this dramatic and unregulated expansion of the program will 

foster more abuses of the sort we have already seen in the 287(g) program. Given the welldocumented abuses against Latinos, and other immigrants and individuals of color, via the 

287(g) program, this kind of broad delegation of power and control under the program is 

inappropriate. Federal government programs should not become tools of racial profiling. 

Moreover, this legislation allows the federal government little recourse to tenninate 

287(g) agreements even when these programs are leading to Maricopa County-style abuses. 

13 See Alabama's Shame. Southem Pm'erty Law Center. http://www.splcenter.org/alabamas-shame-hb56-and-the-

\var-on-il11migrants/a-traffic-arrest-a-mother-s-nighllll'dIe#.UbTo-JV3yfQ 

14 National Immigration Law Center, Racial Profiling After HB 56: Stories from the Alabama Hotline. 

http://www.nilc.org/document.html·7id~800 

15 In the Spring of 2009. the DHS Office of the Inspector General (OIG) undertook an audit of the program. which 

culminated in a lengthy report \vit11 33 recommendations. ,Scc http://ilIllniurationilllpact.cOlll!2010/10/2(;!office-ofi]J!illqClQl,:::,"g9·W;n~!-gJg-,-11n_d_~:-~_~?g-PJQgL~lHt::·sliU~rhlqiQct-=-~:tHb:Jli!\~~{ The OIG updated this report in 2010 and again 

in Seplember 2012 and found U13l DHS had nol solved Ihe e"lensi ve problems idenlified in Ihe previous report 

despite purported "reforms" to the program. Department of Homeland Security Office of Inspector General, The 

Perfonnallce of 287(g) Agreements FY 2012. Follow-Up, Sept. 2012. 

htJp)hY\'L\YA)jg:\1h5!gQ~L;15s~t:;;!~1g:mt!~~1J~1~U CL 12-JJQ ~S~p12.Ildr The 2010 report described the targeting of 

innocenl people. a lack of slate and local supervision, and insurricicnt [raining of 287(g) officers. In addition, in 

2009. the General Accountability Office issued a report finding that the program lacked key internal controls and 

adequate oversight mechanisms. U.S. Government Accountability Office, Immigration Enforcement: Better 

Conlrols Needed over Program Authori/,ing State and Local Enforcement of Federal Immigration Laws, Jan. 30. 

2009. http://www.gao.gov/products/GAO-09-109. And. in the intervening years this lack of control has led to the 

documented abuses under the program. Id. 

7 
62 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

Instead, these agreements could only be terminated for good cause, and even then only after a 

hearing before an administrative law judge. In addition, the jurisdiction has the right to appeal a 

tennination decision to the court of appeals and the Supreme Court-while all the while the 

agreement remains intact. These provisions would have prevented the federal government from 

tenninating Maricopa County's 287(g) agreement and the Alamance County agreement, despite 

findings of discrimination under the programs. 

The bill would negatively impact the ability of local law enforcement to do their job and to 

have the needed trust of the local communities they are tasked with protecting. 

Law enforcement chiefs and associations do not want the power to enforce civil 

immigration violations. They understand how this will do nothing but alienate the very 

communities they have sworn to protect and serve. Indeed, a recent poll found that, in the cities 

surveyed, a whopping 44 percent of all Latinos and 28 percent of Us. -born Latinos reported 

reluctance to report when they have been victims of a crime out of fear that they or their loved 

ones would be asked about their immigration status. 16 For this reason, law enforcement leaders 

have spoken out about the need to ensure that there is trust between police and the communities 

they serve. The SAFE Act would erode that trust. 

For years, major organizations such as the Police Foundation,17 the International 

Association of Chiefs of Police,1 R and the Major Cities Chiefs Association 19 have expressed 

concerns about how the 287(g) program undermines their core public safety mission, diverts 

scarce resources away trom practices that actually promote public safety, increases exposure to 

liability and litigation, and exacerbates fear in communities. When Arizona's SB 1070 headed to 

the Supreme Court last year, 18 current or fonner police chiefs and sheriffs as well as 3 police 

associations joined an amicus curiae brief arguing that local law enforcement should not be in 

the business of enforcing federal immigration law because it makes communities distrustful of 

the police, diverts valuable law enforcement resources, and ultimately makes it more difficult for 

police to keep their communities safe20 

In addition, the SAFE Act contains a provision that would clutter up the National Crime 

Information Center (NCIC) and prevent local law enforcement officers from being able to make 

important and timely decisions. This provision would add literally millions of noncriminal 

16 Nil Theodore. "Insecure CommuniLics: Latino PcrccpLions of Police Involvement in ImmigranL Enforcement." 

Department of Urban Plamling and Policy, University of Illinois at Chicago (.~013). 

I, http)hww.poiiccfoundation.org/sitcs/pftcst I .dmpaigardcns.com/fi IcslKhashu%21l%2S21l1l9%29%20-

%20Thc%20Rolc%20oI%20Local%20Policc.pdf 

18 htl p)ll I IV w.1 hei acp .org/Porla is/O/pdi's/Pub i ical ions/Po i iceCh icrsGuidelo I mmi gralion.pdi' 

I'Major Cities' Chiefs, Revised InmligrationPosition. October 2011 p. J. 

hllps:llwww.rnajorcilieschiefs.com/pdflnewslimmigraliolljlosilioni02311.pdi.;MaiorCilics.Chiefs. Immigralion 

Committee Recommendations, June 200G. p. 10, http://www.hollstontX.gov/police/pdfs/mcc-'position.pdf. 

20 Brief of StaLe and Local Law EnforccmcllL OIIicials as Amici Curiae. AriLona v. UniLcd StaLcs. March 2012. 

hltn:i/T"yyr\Y.nilc.org/document.lmnl'?id=()47 

8 
63 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

records to the NCIC database21 As a result, local law enforcement omcers using the system 

would have to waste precious time deciding whether a "hit" in the system merited action. Local 

police rely on the NCTC to determine whether a person they have pulled over or detained is 

wanted on serious criminal charges by another jurisdiction, including the federal government. 

We want our local law enforcement to be able to quickly detennine if a "hit" in the NCIC system 

is for someone wanted for a serious crime-who could pose a danger to that law enforcement 

omcer him or herself Local law enforcement leaders have opposed efforts to expand the NCIC 

to include noncriminal immigration infonnation because it undennines the central purpose of the 

system: to serve as a notice system for criminal matters and warrants. 22 As Police Chief Chris 

Burbank of Salt Lake City said just last month: 

lFor law enforcement. theJ first priority is to ensure the safety and security of the 

communities we protect and serve. The National Crime Infonllation Center helps us 

accomplish this mission by providing officers with an effective and expedient way to 

determine whether individuals encountered or detained are a threat to the public or to the 

officers themselves. This important law enforcement tool should not be cluttered with 

infonnation concerning civil issues. Just as a law enforcement officer "vauld have no 

need to determine whether someone has paid their taxes in the previous year, officers 

should not be forced to wade through civil immigration matters to determine whether the 

individual the omcer has stopped has an outstanding criminal warrant for their arrest." 

Creates harsher immigration penalties than imposed under the criminal justice system. 

The SAFE Act would also change the definition of conviction under federal immigration 

law to explicitly state that any reversals, vacatur, expungement, or modification to a conviction, 

sentence, or conviction record would not change the immigration consequences resulting from 

the original conviction-attempting to reverse well-settled legal precedent in this area. Nothing 

in this provision creates an exemption for people who can show rehabilitation or who were not 

properly advised of the immigration consequences of a guilty plea. This provision violates our 

basic notions of criminal justice and rehabilitation 

~l Specifically, the provision amendment proposes to add infonnation on individuals· (I) \yhosc visas have been 

revoked: (2) who a Federal olIieer has dctcnnincd to be lUllawfully present; (3) who have entered into a voluntal) 

departure agreement (4) have overstayed their authorized period of stay: and (5) \vho have a final removal order 

entered against them-even if they are appealing this order 

"Major Cities' Chiefs. Revised Immigration Position, October 2011 p. 3. 

https:llwww.majorcitiesehiefs.com/pdf/ncwslimmigration_positionl023II.pdf;MajorCities·Chiefs. Immigration 

Committee Recommendations. June 2006. p. 10. http://www.houstontx.gov/police/pdfs/mcc_position.pdf. 

Montgomery COUllty, MD, Police Chief Thomas Manger testilied to Congress Oil behalf of UlC Major City Chiefs 

Association, "vhich includes the 56 largest police departments in the U.S. covering more than 50 million residents 

"MCC strongly requests that the federal agencies cease placing civil-immigration detainers on NCIC and remove 

any exisling civil detainers currenlly on the syslem. The integrily or the sy stem as a notice system ror criminal 

warrants and/or criminal matters must be maintained. 

23 Chief Burbank Statement on Sessions 35 amendment to S. 2-l-l-l. May 20, 2013. www.nilc.org/nr052013.html 

The Sessions 35 amendment is substantially identical to Section 103 

9 
64 

Testimony of Karel1 C. Tumlil1 

June 13, 2013 

Removing a person even if the convictIOn itself was overturned due to inetJective 

assistance of counsel would violate the Sixth Amendment's guarantee of effective assistance of 

counsel. On March 31, 2010, the U.S. Supreme Court held that criminal defense attorneys are 

required under the Sixth Amendment to advise noncitizen clients of the immigration 

consequences of their guilty pleas. Padilla v. Kentucky, 130 S Ct. 147~ (2010). A noncitizen 

who was not advised of the immigration consequences of his or her criminal conviction could 

then bring a motion to vacate their conviction. Low-income immigrants who cannot atJord legal 

counsel have relied on this case law to vacate convictions when they were not appropriately 

advised of the consequences of a guilty plea. 

Typically, when a criminal court vacates a conviction for cause-based on a procedural 

or substantive defect in the underlying criminal proceedings-the conviction no longer exists for 

immigration purposes. See, Poblete Mendoza, 606 F.3d 1137, 1141 (9th Cir. 2010). This is to 

recognize the fact that a conviction that violates the Sixth Amendment should not lead to the 

drastic immigration consequence of lifelong exile from the United States. The SAFE Act also 

counters established case law holding that an expungement for a first conviction for a minor drug 

offense does not count as a conviction for immigration purposes if plea was before July 14, 20 II. 

See, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Nunez-Reyes 1'. Holder, 646 F.3d 

683 (9th Cir. 2011). Under current law, a person who is able to expunge a conviction for 

possessing a minor amount of marijuana would not face deportation on the basis of the 

conviction. The SAFE Act would undennine the intention of state expungement statutes, which 

exist to ameliorate the effects of minor criminal convictions and to recognize that people can 

rehabilitate. 

Conclusion 

The National Immigration Law Center applauds the efforts of this Committee for 

recognizing the importance of revamping our nation's immigration system. But the legislative 

solution to our immigration needs must create a road to citizenship for those who are currently 

undocumented, strengthen our families, and implement policies that are consistent with our 

constitutional values. The SAFE Act fails to meet these critical standards. As discussed above, if 

implemented the SAFE Act will create an environment of rampant racial profiling and 

unconstitutional detentions by law enforcement officials and eliminate the ability of the federal 

government to speak with one voice on immigration-an area oflaw that is inherently tied to our 

national foreign policy, trade, and investment interests. Most importantly, this legislation would 

violate the rights of countless noncitizens and people of color if enacted. 

10 
65 

Mr. GOWDY. Ms. Martinez. 

TESTIMONY OF CLARISSA MARTINEZ-DE-CASTRO, DIRECTOR 

OF CIVIC ENGAGEMENT AND IMMIGRATION, NATIONAL 

COUNCIL OF LA RAZA 

Ms. MARTINEZ-DE-CASTRO. Thank you, Acting Chairman Gowdy 

and Ranking Member Conyers, for the opportunity to testify on behalf of NCLR. 

There is clearly too much tragedy related to letting this issue 

continue unresolved. For the last two decades, the problems in our 

immigration system have largely prompted one prescription: enforcement. While enforcement is essential, alone it cannot fix all of 

those problems which are resolvable if we don’t keep providing a 

one-dimensional response no matter its consequences. 

The Strengthen and Fortify Enforcement Act unfortunately 

largely focuses on adding strength to an old prescription that has 

not cured our ills but will have detrimental side effects. While it 

includes some needed provisions, such as ensuring enforcement 

agents have equipment they need, prosecuting criminal smuggling 

rings and human smuggling rings, the benefits are far outweighed 

by some of its other provisions. 

And let’s be clear: No one argues that the perpetrators of the 

crimes and tragedies described here today should stay in our communities. That should not happen. But this bill would make Arizona’s SB 1070 the law of the land. Known as the ‘‘show me your papers’’ law, 1070 was condemned by the country’s civil rights community because it legitimized racial profiling and every facet of 

mainstream America was represented among those opposing it, including members of law enforcement. 

Frustration over Federal inaction to fix our broken immigration 

system led many Americans to express support for it, but not because they thought 1070 would fix the problem, but because they 

wanted action. Since then, the message coming from States that 

debated copycat laws, and 31 States rejected that approach while 

the 6 that adopted it face lawsuits and injunctions. The message 

was that only the Federal Government could fix our immigration 

system the way that is required. This Committee has the ability to 

provide the real solutions, and it is imperative that you fix the system, not make things worse. 

But rather than assert Congress’ responsibility to restore an orderly system, this bill poses a massive and unnecessary delegation 

of authority. The effect of that delegation will be to create a patchwork of laws that will add more chaos, not more order, to our immigration system. There is widespread evidence that delegating to 

States and localities the enforcement of Federal immigration laws 

threatens civil rights, and that has been mentioned here by Members, as well as Ms. Tumlin. 

By expanding such practices, H.R. 2278 would lead to racial 

profiling and wrongful detention because everyone who looks ‘‘illegal’’ would be subject to law enforcement stops, arrests, and detention. And it would criminalize otherwise innocent behavior. The 

legislation would increase the possibility, for example, that a 

church taking in undocumented children after their mother got deported would be subject to harboring charges. 
66 

To some, the violations of rights and values of ‘‘show me your papers’’ policies may seem just like collateral damage. To the Nation’s 

52 million Hispanics, 75 percent of whom are United States citizens, the damage is not collateral at all. According to the Pew Research Center, one in 10 Latino citizens and immigrants alike report being stopped and questioned about their immigration status. 

That means that over a few years, most Hispanics face a virtual 

statistical certainty that they will be stopped by police based on 

their ethnicity. If that were happening to all Americans, I suspect 

we would not be having this debate. 

A patchwork of immigration laws is bad for the Nation and is a 

recipe for disaster for the Latino community. At a time when momentum is building for the immigration reform our country deserves, it is disheartening to be taking a look back instead of forward. Our country deserves better. 

The way you restore the rule of law is to have a legal immigration system that takes the legitimate traffic out of the black market, allows immigrants to come with visas and vetted rather than 

with smugglers, and allows immigrants who are working and raising families in the U.S. to come forward, go through criminal background checks, and get in the system and on the books if they qualify. 

The enforcement-and-deportation-only approach cannot get us 

there. Adding more layers to it may seem the politically easy thing 

to do, and this Committee has been doing almost exclusively that 

for the last 20 years. In this case, those proposed new layers in the 

name of immigration enforcement will have serious negative effects 

across the country and especially in communities where people look 

like me. 

I urge you to take the smarter, more comprehensive approach 

and pass the real solutions that we need. And I agree with Mr. 

Labrador, who yesterday said that we need to have a comprehensive approach to immigration because it is the right thing to do and 

it is the right policy. And I urge him and all of you to make those 

true solutions a reality. Thank you very much. 

Mr. GOWDY. Thank you, Ms. Martinez. 

[The testimony of Ms. Martinez-De-Castro follows:] 
67 

THE "COLLATERAL" DAMAGE 

OF ENFORCEl\'IENT-ONLY IMMIGRATION POLICY 

Presemed at 

Hearing on the 

Strengthen and Fonify Enforcement Act (RR. 2278) 

Submitted to 

House Comminec on th~ Judiciary 

Submined by 

Claris53. Martinez-De-Castro 

Director. Immigra tion and Civic Engagcmem 

Nalional Council ofla Raza 

June 11 , 2013 

~IYUQ~",.8"1d~ 

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w.~'''Q\M,OC n'!*~e.tS 
68 

2 

Chairman Goodlatte and Ranking Member Lofgren, thank you for the opportunity to appear 

before the committee today and provide testimony on behalf of the National Council of La Raza 

(NCLR). NCLR is the largest national Hispanic civil rights and advocacy organization in the 

United States, an American institution recognized in the book Forces/;,r Good as one of the 

highest-impact nonprofits in the nation. We represent some 300 Affiliates-local, communitybased organizations in 41 states, the District of Columbia, and Puerto Rico-that provide 

education, health care, housing, workforce development, and other services to millions of 

Americans and immigrants, annually 

NCLR has a long history of fighting for sensible immigration laws, evidenced through our work 

in the Hispanic community, in the states and in Washington, DC. Most of our Affiliates teach 

English, provide health care services, promote financial literacy, and otherwise ease the 

integration of immigrants into the mainstream. We support and complement the work of our 

Affiliates in communities by advocating for public policies here in Washington and increasingly 

at the state level. 

The nation's immigration system is experiencing a systemic failure. Its multiple components are 

designed to work in tandem to (I) achieve a legal and regulated flow of workers and the 

reunification of families, (2) implement enforcement measures that advance national security and 

public safety and help ensure employers maintain a legal workforce, (3) support the successful 

integration of immigrants into society, and (4) conduct itself in way that upholds the nation's 

values and traditions respecting the legal and civil rights of America's diverse community. A 

breakdown in anyone area has an impact on the effectiveness of all the others, and on the ability 

to maintain a legal and orderly process 

Congress has a unique and historic opportunity to pass immigration refonn this year and deliver 

real solutions to a problem that has festered too long. Not only does fhing our broken 

immigration system benefit immigrants themselves, it is in the best interest of our country. 

Immigration to the United States should be orderly and legal, promote economic growth and 

family unity, and reflect our nation's values. The moral, economic and political imperatives for 

action are aligned, and Congress has an opportunity and a responsibility to deliver immigration 

reform that: 

Restores the rule of law by creating a roadmap to legalization and citizenship for II million 

aspiring Americans, and promoting smart enforcement that improves safety, supports legal 

immigration channels, and prevents discrimination; 

Preserves the rule of law by creating workable legal immigration channels that reunite 

families, strengthen our economy, and protect workers' rights; and 

Strengthens the fabric of our society by adopting proacti ve measures that advance the 

successful integration of new immigrants 

HR2278 

For the last two decades, the growing inadequacies of our immigration system to meet changing 

economic, societal, and global conditions have largely prompted one sole prescription: 

enforcement. And while enforcement strategies are an essential component of maintaining a 

legal and orderly immigration system, these strategies alone cannot address the challenges we 

NCLR 

NATIONALCOUMCILOF l~RAIA 
69 

face-which are solvable so long as we do not keep insisting in providing a one-dimensional 

response no matter its consequences. 

The Strengthen and Fortify Enforcement Act (H.R. 2278), unfortunately, largely focuses on 

adding strength to an old prescription that has not cured our ills and will have detrimental sideetfects. While it includes provisions to tight criminal and human smuggling rings, prosecute 

predatory practices, and ensure our men and women on the tront lines have the annor and 

weapons appropriate for their functions, those benefits are offset by highly concerning provisions 

in other areas. This testimony focuses on Title I of the bill, which contains most of those 

provisions. Some of its sections echo a previous bill, HR 4437, the Border Protection, 

Antiterrorism, and Illegal Immigration Control Act of 2005, which generated the largest peaceful 

demonstrations our country has ever seen with millions participating in over 100 cities. ln 

addition, this bill would make Arizona's SB 1070 the law of the land. Widely known as the 

"show me your papers" law, SB 1070 in 2010 galvanized the country's civil rights and social 

justice communities, led to multiple boycotts, and widespread condemnation from many sectors 

of our society, including criticism from local governments and law enforcement, because it 

legitimized and codified racial protiling. 

Frustration over federal inaction to tix our broken immigration system led many Americans to 

express support for such legislation. Not because they thought it would tix the problem, but 

because they wanted action. Since then, we have reaffirmed that two wrongs do not make a 

right. Similarly, the overarching message coming from states that debated similar laws-and it 

should be noted that 31 states rej ected that approach, 1 while the six that moved forward faced a 

slew of lawsuits and injunctions-was that they needed the federal government to act and fix our 

immigration system. But unlike those state legislatures and those of us in the American public, 

you represent the legislative branch of our federal government and thus have within your power 

the ability to provide the multi-dimensional solutions that are required to fix this problem. It is 

imperative that you exercise the stewardship needed fix the immigration system, and not make 

things worse 

Rather than assert this Congressional role and responsibility to ensure we have an orderly and 

regulated immigration system, HR 2278 proposes a massive delegation of authority that is 

unnecessary, given: 

Enormous buildup in enforcement, particularly border enforcement, in recent years, as 

documented in the following section (Current Enforcement Levels). 

Contemplated increases in pending bipartisan immigration refonn proposals, including a 

proposed massive expansion ofE-Verify and other interior enforcement efforts 

The effect of this delegation of authority will be to create a patchwork of laws that will add more 

chaos, not more order, to our immigration system. 

1 In 2001, for example. state legislatures ranging from Democrat control to Republican supennajorities rejected the 

SB 1070 approach. including CA. NV, WA. CO. IA. KY. LA. MS, VA. ME, NC, TN, FL. KS. OK. NH, SD, TX. 

and WY. For more detail. see NCLR's 2012 report 1 he Ilrol1g ,~pproach: State ,~nti-lmlnigration Legislation in 

201 J. http:;'i\v\V\V ndr.orglindex.php/public3Tiolls/the "Tong approach state ontiil11migmtion legislation ill 20ll-l1 

NCLR 

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4 

Furthermore, HR 2278 is harmful. There is widespread evidence that interior enforcement of 

immigration laws generally, and its delegation to states and localities in particular, inherently 

threaten civil rights and violate other core American values (as documented in the section below, 

Latino Community Concerns). By condoning and expanding such practices, HR 2278 would: 

Lead to racial profiling and wrongful detention, because everyone who "looks illegal" is 

presumed so and subject to law enforcement stops, arrest and detention. On the heels of a 

court ruling against Sheriff Joe Arpaio, the poster child for these policies, determining that 

patterns of racial profiling and discrimination were widespread in the pursuit if this approach, 

the proposal to nationalize such policies is outright disturbing. 

Criminalize otherwise innocent behavior. Ifthis legislation became law, it would increase 

the possibility, for example, that a U.S citizen teenager driving to the movies with his sister 

who is undocumented could be subject to prosecution. Or that a church that took in 

undocumented children after their mother got picked up for deportation-as happened after 

the Postville raid in Iowa-would be subject to harboring charges. 

Overall, HR 2278 seems to turn our cherished constitutional principle of innocent until proven 

guilty on its head. It seeks to exhaust every ounce of discretion that can be used to presume 

guilt, while restricting discretion to determine innocence. 

To some, the violations of rights and values of "show me your papers" policies may seem 

acceptable collateral damage. To the nation's Hispanics, seventy-five percent of whom are 

United States citizens and represent 1 in every six people in America, the damage is not 

collateral at all. According to the Pew Research Center, one-in-ten Latinos, including citizens 

and legal immigrants alike, report being stopped each year based on suspicion of immigration 

status. Multiply that over a few years and MOST Hispanics face a virtual statistical certainty 

that they will be stopped by police because, based on their ethnicity alone, they are presumed to 

be unauthorized immigrants. If that were happening to all Americans we suspect we wouldn't 

even be having this debate-a policy so widespread, invasive, and subject to abuse would not 

even be on the table for serious consideration. 

CURRENT ENFORCEMENT LEVELS 

Failure to enact federal immigration reform has not meant inaction on immigration enforcement 

over the past two decades. In fact, by nearly every standard, more is being done than ever before 

to enforce immigration laws. Measured in terms of dollars, not only are we spending more on 

immigration enforcement than at any time in history, but the federal government today spends 

more on enforcing immigration laws than on all other categories of law enforcement combined. 

Measured in qualitative terms, never before has our country used a broader array of enforcement 

strategies than we do today. Through congressional appropriations and the passage oflegislation 

like the Secure Fence Act and the Southwest Border Security Bill, the federal government has 

already enacted an enforcement-first policy. We have seen more personnel, more technology, 

more fencing and more money put into border security, along with new and expanded initiatives 

like Operation Streamline, which criminally prosecutes all undocumented border crossers and 

has overwhelmed our court system and wasted precious judicial resources. Throughout the 

interior, enforcement has increased through programs like Secure Communities, and 287(g) 

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agreements continue At the worksite, E-Verify has been expanded, and the incidence ofI-9 

audits is at unprecedented level s. 

Measured by results, detention and prosecutions of immigration law violators, as well as 

deportations, are at al1-time highs. Beginning with the last two years of the Bush Administration 

and continuing through the Obama Administration's tirst term, deportations have risen and 

remain at record levels, measured in both absolute and relative tenns. 

At the same time, perhaps for the tirst time since we acquired much of the American Southwest 

in the late 1840s, net migration from Mexico is now zero-or less-according to the best 

available research 

Reasonable people can disagree about how much enforcement is enough. Even though the 

Government Accountability Office (GAO) has testified before Congress that prevention of every 

single unauthorized border crossing would be unreasonable, for some no amount of enforcement 

will ever be enough. This is not the standard we apply to any other area oflaw enforcement. 

According to the Migration Policy Center's report Immigration Pnforcemem in the United 

Stales: the Rise ofa Formidabfe Machinery, with FY 2012 expenditures at $18 billion, the U.S. 

government already spends more on its immigration enforcement agencies than on al1 its other 

principal criminal law enforcement agencies combined. Taking a close look at the growth of 

funding, technology, and personnel, as well as case volume and enforcement actions, the report 

finds that "[t[oday, the facts on the ground no longer support assertions of mounting illegal 

immigration and demands for building an ever-larger law enforcement bulwark to combat it," 

and offers this concluding finding: 

Even with record-setting expenditures and the/ill/use ofa wide array of statutory and 

adminislralive 10015, enforcemenl alone is nol sufficienl 10 answer Ihe hroad challenges 

that immigration legal and illegal pose for society and for America's future. Meeting 

those needs cannol be accomplished Ihrough more enjbrcemenl, regardless ofhow well il 

is carried oul. Olher changes are needed: enforceahle laws Ihal bOlh address 

continuing weal messes ifT the el?fbrccment system, such as employer el?fbrcemenr, and 

Ihal heller align immigralion policy wilh Ihe nalion's economic and labor market need~ 

andfilfure growth and well-being.] 

Yet, HR 2278 does little to address those other areas. It is widely recognized that jobs are the 

most potent pull factor attracting immigrants to this country. Similarly, much concern has been 

expressed about the unfair advantage some employers derive from hiring undocumented workers 

who are less likely to speak up in the face of wage and work safety violations. But while HR 

2278 doubles down on the types of enforcement where much has already been done, it continues 

to omit particular enforcement policies that have been sorely neglected. We note with some 

concern the relative lack of attention being placed on the importance of improved enforcement of 

labor laws. Even highly effective workplace enforcement regimes can be subverted by 

unscrupulous employers, who use middlemen to avoid enforcement liability, exploit 

2 Meissner, Doris. Donald M. Kenvin. Muzaffar Chishti .md Claire Bergeron, immigration .t.-f~forcemf'J1t in the 

United States: The Rise 0/.1 Formidable Machinery. Migration Policy Center. Washington, DC: 2013. 

http://wvvw.migmtionpolicv.ofrr/pnbsienforcemelltpillars.pdf 

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6 

unauthorized workers through substandard wages and working conditions, and thereby under-cut 

their law-abiding competitors and worsen labor standards for all workers 

LATINO COMMUNITY CONCERNS 

As the recent election clearly demonstrated, the issue of immigration is a galvanizing force for 

the nation's Hispanic community. Toxic rhetoric in public discourse on this issue has affected us 

deeply, regardless of immigration status, and we see getting this debate on the right course as a 

matter of fundamental respect for the role of Latinos in the US. Latino voters generated the 

game-changing moment for immigration last November, creating an opening to finally achieve 

the solution our country needs. And the Latino community's role is growing. An average of 

878,000 Latino citizens will turn 18 each year between 2011 and 2028. Our community is 

engaged and watching this debate closely 

From the perspective of the Latino community, current levels of immigration enforcement are 

already intolerable, because virtually all of us are affected. The way in which these policies are 

being carried out have unfortunate, discriminatory, and much too often economically and 

personally devastating consequences in our community and to the social fabric of our country. 

Too many US. citizens and lawful residents are stopped, detained, and even deported as a result 

of over-zealous application of the law. Too many US. citizens and lawful residents are faced 

with the choice of separation from their family members or leaving the country of their birth to 

live abroad when a family member is deported. And too many resources are diverted from more 

worthy purposes to track down, arrest, detain, and deport people whose only offense is to seek a 

better life for their families, the vast majority of whom are otherw'ise law-abiding and who pose 

no threat to public safety. This significantly undennines the rule oflaw in our country and 

diverts resources away from pursuing those who present a threat to national security or public 

safety 

Numerous reports have documented the negative etIects that deputizing local law enforcement to 

apply immigration laws have on public safety and community policing. According to a 2013 

report by the University of Illinois at Chicago, surveying Latinos in Cook, Harris, Los Angeles, 

and Maricopa counties, this interaction between law enforcement and immigration has made 

over 40 percent of Latinos less likely to contact police to report a crime or if they are victims ofa 

crime, because they are afraid the police will ask them or people they know about their 

immigration status. And that reluctance is not limited to undocumented immigrants. The report 

also found that "[w]hen asked how often police officers stop Latinos without good reason or 

cause, 62 percent said very or somewhat often, including 58 percent ofUS-bom respondents, 64 

percent of foreign-born respondents, and 78 percent of undocumented immigrant respondents.,,3 

An earlier NCLR report on the impact of287(g) agreements, the expansion of which is proposed 

in this bill, found similar concerns and abuses. The report contains a survey done in 

collaboration with the Tennessee Immigrant and Refugee Rights Coalition one year after the 

3 Sec Theodore, Nick, Insecure lommunilies: [,ali}1o Perceptions q(Police lm'o/vemenl in Tmmigralio}1 

l!'nforcement. Dept. of UrbanPlmming, University of Illinois at Chicago. May 2013. Randomized survey of Latinos 

in four major counties. http:!;,v,-,,'\y.ulc.edll/cuppaigcl/doCl1ments/1213/1nsecllfe Communities Report FINAL pdf 

NCLR 

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7 

287(g) agreement was in place in Davidson County, TN. The study compared the willingness 

and likelihood of economically equally situated Latinos and Blacks to approach the police in 

Davidson County. Results showed that while both communities have negative perceptions of the 

police, the Latino community expressed greater fear and unwillingness to contact the police in 

the case of an emergency. Furthermore, the survey indicated that much of the apprehension 

reported by Latino survey partici pants was related to immigration enforcement and fear of 

possible deportation 4 

For those who may believe these concerns are far-fetched, consider this: 

Eduardo Caraballo, a US. citizen born in Puerto Rico, was arrested by Chicago police in 

May 2010. Although his mother posted bond, he was held for more than three days in the 

custody of federal agents on suspicion of being undocumented. They refused to release him 

even after being provided his birth certificate, apparently assuming that his paper were fake 

because of his "Mexican appearance" He said he was threatened with deportation. He was 

released only after the intervention of Illinois Congressman Luis Gutierrez.' 

Tn early 2008, Pedro Guzman, a mentally disabled US. citizen from Lancaster CA, was 

arrested for trespassing in a local airport. He was sentenced to j ail in Los Angeles County on 

April 19. While injail, he was erroneously reported to TCE as a non-citizen, although 

Sheriffs Department records indicated he was a citizen who stated at booking that he was 

born in California. He was transferred to ICE, which deported him to Tijuana, Mexico, 

leaving him alone with $3. He spent nearly three months destitute in Mexico while his 

family searched frantically for him and filed a lawsuit to force the US. government to help 

tind him. He tried to cross the border into California several times, but was turned away. He 

was found in August 2008 near the Calexico border crossing. It appears that he signed a 

voluntary release document without recei ving any assistance in reading or understanding it, 

although he reads at a second-grade level and has trouble remembering information like his 

telephone number 

Tn December 2008, ICE deported Mark Lyttle, a US. citizen diagnosed with bipolar disorder 

and developmental disabilities, first to Mexico and from there to Honduras and then 

Guatemala. Four months later, he was returned to the US ICE officials say that he signed a 

statement that he was a Mexican national.,,6 

In Arizona, these cases came to light in the recent lawsuit against Sheriff Joe Arpaio and the 

Maricopa County Sheriff's Office (MCSO), part of the documented pattern of racial profiling 

and illegal detentions targeting Latinos7

: 

Manuel Ortega Melendres is a legal visitor to the United States who possessed a valid visa. 

On September 26, 2007, he was a passenger in a vehicle that was stopped by officers from 

the Maricopa County Sheriffs Office in Cave Creek, Arizona. MCSO was conducting an 

1 Sec NCLR's Issue Brief The impacl (~rSeclion 287(gj oJlhe immigralion and Nalionalily~'1cl on Ihe imino 

C'ommul1it))_ 2010. htID://"\"\HV.l1clr.orgiimages/uploads/publicatiolls!287gReporrFilla1 i.pdf 

5 "Deportation Nightmare: Edlmrdo Carnballo, US Citi7en Born in Puerto Rico. Detained as Illegal Tmmigrnnt:' 

Huffing/on rust, May 25,2010. See hHp://V\ \\ \.\. womeH'::COllllnission.orglprogralusJde1entiOll/Viomen-il1-detemlO11 

""Deportation by Default: Mental Disability. Unfair Hearings. and Indefinite Detention in the US Inmtigration 

SYstem." New York: Human Rights Watch and the ACLU, July 2010. See 

PttP:!/iDYJIJtny &:u;/siJe~!~k~~nll V1}le~~r~Q_~n::t~J.l~4YPQffiltjmJ071D'}~~12'I~!J1~er LJLnd(· "From ACLU's plaintiff profiles in Ortega Melendres, et al. Y. Arpaio, et aI htm:!!www.3clu.org/imntigrams" 

rights-racial-jusHce/ortco-a-melendres-et -ai-i" -amaio-et -31 

NCLR 

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operation targeted at day laborers. Although the officer who stopped him claimed that the 

reason he pulled the vehicle over was because the driver was speeding, the driver, who was a 

Caucasian male, was not given a citation or taken into custody. The officer instead asked Mr 

Ortega and the other Latino passengers to produce identification. Though Mr. Ortega 

provided identification, he was nonetheless arrested. Mr. Ortega spent four hours in a cell in 

the county j aiL Eventually he was taken to an Immigration and Customs Enforcement (ICE) 

oftlcial, who contirmed that he had proper documentation to be in the United States. After an 

hours-long ordeal, Mr. Ortega was released 

In March 2008, siblings Manuel Nieto and Velia Meraz were stopped during a sweep in 

North Phoenix after they had witnessed the MCSO detaining two Latino men at a gas station. 

Mter pulling into the gas station, the MCSO deputy ordered Ms. Meraz and Mr. Nieto to 

leave. They left the gas station, but were subsequently pulled over by MCSO deputies in 

tront of their family business at gunpoint While Mr. Nieto called 91 I, MCSO deputies 

pulled him out of his car and threw him against it. Family members who were present at the 

time informed the oftlcers that both Mr. Nieto and Ms. Meraz are U.S. citizens. MCSO ran 

Mr. Nieto's identification and then released both ofthem without a citation or any apology. 

David and Jessika RodriS'llez, along with their two young children, were off-roading near 

Lake Bartlett in December 2007. As they were leaving the preserve, they were stopped and 

ticketed by MCSO for driving on a closed road. But several other drivers who were not 

Latino and driving on the same stretch of the road were allowed to leave with only a warning. 

During the stop, the MCSO deputy demanded to see Mr. Rodriguez's Social Security card 

even though he had produced his Arizona driver's license, registration and proof of 

insurance. Mr. Rodriguez eventually relented and provided the deputy with his Social 

Security number so that he and his family could leave in peace. As the Rodriguezes drove to 

the exit of the preserve, they were able to stop and speak with other drivers and confirm that 

not one of them had been given a citation. The Rodriguezes were treated unfairly because 

they are Latino. The Rodriguezes are U.S citizens 

In Alabama, after that state passed an even more draconian version of the Arizona law, the 

Southern Poverty Law Center documented a set of problematic developments, including a judge 

telling a female victim of domestic violence seeking a protective order that she would be 

deported if she pursued the order; and a clerk telling a Latino customer that he could not make a 

purchase with a bank card because he did not have an Alabama ill, although the Latino customer 

was legally present but from Ohio. 

These cases are only a small illustration of the experiences many Latinos are subjected to 

because of how they look or sound 

Concerns about the adverse effects of delegating immigration enforcement to local law 

authorities are not Latinos' alone. Any community with members that are deemed to be foreign 

or have experienced racial profiling has expressed concerns. Opposition to SB 1070 included the 

Asian American Justice Council, the Leadership Conference on Civil and Human Rights, the 

NAACP, the Urban League, 

Furthermore, numerous voices in the law enforcement community have also expressed concerns 

about pursuing this approach. At the height of debate over Arizona's SB 1070, the Major Cities 

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9 

Chiefs of Police Association, the Police Executive Research Forum, the National Latino Peace 

Officers Association, and 19 current and fonner chiefs of police and sheriffs from multiple 

states, filed an amicus brief against the Arizona law." 

For those who may not be swayed by the disparate application and effect of these laws on 

America's diverse citizens and legal residents, the record also demonstrates that these laws are 

expensive and counterproductive. Tn addition to extensive legal battles, Arizona suffered 

financial and job losses, tarnished its image, and saw the historic recall of the legislation's 

author. The handtul of states that ignored the lessons from Arizona faced lawsuits and mounting 

legal fees, experienced millions of dollars in economic losses, and made law enforcement more 

difficult. 

CONCLUSION 

A patchwork of immigration laws is a bad prescription for the nation and a recipe for disaster for 

the Latino community. We have been down this road before with SB 1070, and the results are 

in-these policies generate racial profiling and discrimination. That is why every facet of 

mainstream America was represented among those opposed to this law, and over 300 

organizations joined 19 amici briefs supporting the legal challenge against SB 1070. Among 

those joining were 68 Members of Congress; 44 former state attorneys general; dozens of cities 

and towns; law enforcement associations, sheritl's and police chiefs; labor, business, and civil 

rights leaders; law enforcement experts; former Secretary of State Madeleine Albright; former 

commissioners of the u.s. Immigration and Naturalization Service; prominent religious 

institutions; and numerous faith, labor, and immigrants' rights 

Our country deserves better. We have always aspired to be a nation that judges people by the 

strength of their character, yet HR 2278 would encourage discrimination based on how people 

look or sound, regardless of whether they are American citizens, legal or undocumented 

immigrants. Latinos and people of color would bear the brunt of this mis,guided approach and be 

subject to increased racial protiling. In Arizona, Latinos have already been experiencing the 

consequences of that environment-it is an ugly reality, and sadly, they are not alone. 

Congress has a responsibility to fix our immigration system. It must not abdicate that 

responsibility, and it must not create a situation where there are 50 different ways to apply 

immigration laws in our country, particularly when the consequences are not only chaotic but 

deeply damaging. 

At a time when momentum is building for the comprehensive immigration refonn that our 

system requires and our country deserves, it is disheartening to be taking a look back instead of 

forward. We urge the authors, and this committee, to exercise their leadership to deliver a 

modernized and effective immigration system for the 21" century, and do so in a way that 

respects the contributions of all Americans, regardless of their accent or appearance 

~ Brief of State and Local Law Enforcement Officials as Amici Curiae in Support of Respondent. 

hrtp://,nyv./ .americ::mbacorg/contentfcl'l1niabaJpllblications/suprelne court mevie\y/brlefs/llis:! resoondemal11custate-locallawcnforct:melltofficials.anthcheckdam. pdf 

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Mr. GOWDY. The Chair will now recognize the gentleman from 

Alabama, Mr. Bachus, for his questions. 

Mr. BACHUS. Thank you. 

Let me address the two witnesses at the end of the table. And 

I think you know that I have advocated for a comprehensive approach because I don’t think we ought to have two classes of longterm residents. I even support a pathway to citizenship. But I do 

think it ought to be earned. 

And let me ask you about someone with two DUI convictions. Do 

you think that they have earned citizenship? Or do you think we 

ought to allow them to stay in our country? 

Ms. MARTINEZ-DE-CASTRO. Well, if we are talking about the Senate immigration bill, which I think was referenced earlier as allowing a number of the very criminal offenses that were described 

here, as allowing those people to earn citizenship, that is not the 

case. And we wouldn’t agree with that. I think that some—— 

Mr. BACHUS. If someone has two DUI convictions, would you 

agree that they do endanger public welfare and safety and the lives 

of not only our citizens, but of other undocumented people in our 

country? 

Ms. MARTINEZ-DE-CASTRO. I think that offenses that endanger 

the public safety and national security need to be taken into account. 

Mr. BACHUS. Do you think a DUI, do you think that’s a very dangerous—— 

Ms. MARTINEZ-DE-CASTRO. That is part of the legislation that we 

are supporting in the Senate bill. 

Mr. BACHUS. So if someone with two DUI convictions, they could 

be—— 

Ms. MARTINEZ-DE-CASTRO. I believe that is in the current legislation. Is that correct? 

Ms. TUMLIN. I would say the following. What I would support is 

that for each applicant, that their individual circumstances, including the records, are taken seriously and looked at. 

Mr. BACHUS. Yeah. I really think that someone that’s a guest in 

our country that commits two DUIs. Because a DUI is an indication that they are acting terribly irresponsible. And I don’t think 

that’s earning citizenship in any way. 

What about a gang member of a gang that uses violence? 

Ms. TUMLIN. So again, what’s in the Senate bill right now is that 

individuals who are gang members are excluded from that bill, if 

that’s proven. But again, I do want to be very clear that one thing 

we are concerned about is suspicion, and particularly when you 

judge someone as in a gang based on suspicion of a tattoo or skin 

color. 

Mr. BACHUS. I agree with that. But when it comes to violence— 

and I consider DUI as a violent crime. I mean it certainly can lead 

to some tremendous violence. And I think that advocates of a DUI 

bill are going to have to think about raising the bar, because when 

you raise it you may eliminate 100,000 or 50,000 people in our 

country. But you may, those that are behaving in a responsible 

manner, you are not excluding. 

And let me ask you this. In Alabama—and I ran in an election 

when 70 percent of the people in my district supported the immi-
77 

gration bill and 61 percent of the people in my district strongly 

supported it, and I won almost 70 percent of the vote. Didn’t lose 

one voting place. So they gave me a pass. 

But I didn’t oppose the fact that—and don’t think that we can 

enforce a comprehensive immigration bill without the assistance of 

local law enforcement. And I don’t see how you enforce our criminal 

laws and our statutes or any of our laws once they become laws 

without assistance of local and State law enforcement. That’s the 

only enforcement we have in most of the counties I represent. We 

may have two ICE agents. 

And I hear you say you want it comprehensive, you want it consistent. But do you not recognize that local law enforcement is 

going to have to have a major role in enforcing all our laws? 

Ms. TUMLIN. So there is a difference between assisting and leading. And with respect to law enforcement, I would say the following, and it’s really grounded on what law enforcement officers 

have been telling us for the last several years and even before that 

about what they need to do their own jobs. First and foremost, law 

enforcement officials, including the scores of law enforcement officials who wrote an amicus brief to the Supreme Court last year regarding Arizona’s law, said we need local control. We know best 

how to make decisions about how to police our communities and 

keep them safe. And in addition, they have said, when people are 

afraid to talk to us, when members of immigrant communities will 

not come forward and report crimes to us, we cannot do our job. 

It is astounding what is in the most recent report that’s cited in 

our written testimony about what Latinos say about coming forward to law enforcement. A whopping 28 percent of U.S.-born 

Latinos, U.S.-born, U.S. citizens—— 

Mr. BACHUS. I understand. But I guess I am just saying, can we 

have enforcement and interior enforcement, which I think we all 

agree we have to have, without local law enforcement being involved and empowered? 

Mr. GOWDY. The gentleman’s time has expired. 

I would now recognize the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

This is a very unusual situation we have here today. We never 

have eight witnesses at a time. This sets some kind of a record. 

But we welcome you all anyway. 

And I want to ask about how this bill, Attorney Tumlin, is even 

more stringent and maybe unconstitutional than a bill passed 7 

years ago called H.R. 4437. And it essentially tried to do some of 

the things, but not all the things that are present here in H.R. 

2278, because we’re doing more than strengthening enforcement. 

We’re turning over the responsibilities normally of the homeland 

security and the immigration authorities to local police. 

So this isn’t a matter of taking powers away from local enforcement. This is a matter of having them begin to become immigration 

agents. What are your thoughts in that regard, ma’am? 

Ms. TUMLIN. Thank you Ranking Member Conyers. Absolutely, 

this bill, the SAFE Act, goes well beyond what we saw in H.R. 

4437. It does so in three ways, at least. 
78 

First, as you indicated, it absolutely surrenders control to State 

and local jurisdictions in terms of enforcing immigration law. It allows them to create their own crimes and civil penalties to arrest, 

detain, and investigate individuals for those. And it mandates the 

use of Federal resources and Federal dollars to detain individuals 

on those charges. So the State and localities aside, they have got 

the crimes and the Federal Government is going to pay when they 

lock them up. 

Second, it mandates detention of noncitizens after the expiration 

of their underlying State or local charge without probable cause, 

and it even does so indefinitely without a time limit for anyone the 

State or local jurisdiction believes might be removable from the 

United States. It does that without providing training, oversight, 

and control. It allows local officers who are not versed in the complexities of immigration law to make those decisions and it would 

have severe consequences. 

And last, as the Ranking Member already alluded to, it will radically increase the number of individuals who are criminalized for 

nothing more than being present in this country without status, no 

matter if they have been here 5, 10, 15, 25 years. 

Mr. CONYERS. Thank you so much. 

Ms. De Castro from the National Council of La Raza, did you 

want to add anything to this discussion that I just had with the 

Attorney Tumlin? 

Ms. MARTINEZ-DE-CASTRO. I think the main thing here—and I do 

agree with Mr. Krantz that the either/or approach doesn’t work. 

We need to find a balance. We may disagree on what the balance 

is. But I think that having laws that basically put a bull’s-eye on 

the forehead of America’s 52 million Latinos is probably not striking the right balance. I think we can do better than that. We need 

laws that, indeed, are going to remove the types of criminals that 

are being talked about, because I do agree, particularly in the immigrant community, those criminals prey upon that vulnerable 

population first and foremost. We are not advocating for them to 

remain there or elsewhere. 

But again, it is about balance. And the big issue here is that we 

have seen now through several court proceedings, findings, and 

lawsuits, that unfortunately this type of delegation of law to the 

State and local level is, indeed, leading to racial profiling. 

And there are disagreements, to be fair, in the law enforcement 

community. Obviously we have heard from some of those testifying 

here that they would like to go full throttle on those policies. But 

that should not obscure the fact that there are very important 

voices in the law enforcement community that either don’t support 

those policies or are at best conflicted because the effect that they 

have on community policing strategies and their ability to fulfill 

their first and foremost mission, which is the public safety and to 

first do no harm. 

And the last thing I would add is, if I may, Congressman Bachus, 

congratulations on your landslide election. I don’t think that your 

voters gave you a pass. I think that they, as the majority of Americans—and there is a poll of 29 States that came out today—actually support a comprehensive solution and want this problem dealt 

with. So I don’t think they gave you a pass. 
79 

Mr. CONYERS. You know, I thank you both very much. And I just 

want to observe that this is going to cost a lot of money if this were 

actually put into practice. And most States and localities can’t afford it. And I can attest that the Federal budget can’t take it much 

either. 

But thank you very much for your opinions and being with us 

today. 

Thank you, Mr. Chairman. I yield back. 

Mr. GOWDY. I thank the gentleman from Michigan. 

The Chair now recognizes himself for 5 minutes of questioning. 

Mr. Tumlin, I was going to ask you initially to reconcile for me 

your support of city council members practicing sanctuary law, but 

your lack of confidence in city police officers to actually enforce 

Federal law. But I’m going to go another direction. 

To my friends who are in local DA’s offices and local law enforcement, I want you to pay close attention to what you’ve heard so far. 

You are good enough to investigate homicide cases. You’re just not 

good enough for us to trust you with immigration cases. You’re 

good enough for drug cases, even though that area has been occupied by Title 21 for decades. You’re good enough to help with drug 

cases. You’re just not good enough to help with immigration cases. 

You’re good enough to help, despite the fact that the Second 

Amendment clearly occupies that field if you want to talk about 

preemption, it clearly occupies the field, Title 18, 922(g), 924(c), all 

the Federal firearms statutes. You’re good enough to have your 

own State firearms laws. You’re just not good enough to help out 

with the immigration laws. And even though the Federal system 

has the Hobbs Act to take care of armed robberies, it’s okay for 

States also to have armed robbery statutes. We don’t just tell the 

Feds, you’re the only ones who can occupy drugs and firearms and 

robbery cases. 

So I’ll tell you this: I’ve worked with State prosecutors and Federal prosecutors and State and local law enforcement. If you’re 

good enough to do homicide cases, then I trust you to do immigration cases. And I think it’s a shame that anybody doesn’t. If you’re 

good enough to investigate the most serious crimes in this country, 

but yet we’re worried about you understanding the complexities of 

immigration law? 

I’ve heard a lot about respect for the rule of law. I’m interested 

in respect for the rule of law. I’m much more interested in adherence to the rule of law. Because nothing undercuts the fabric of 

this Republic like people picking and choosing which laws they’re 

going to enforce, when they’re going to do it, when it’s politically 

opportune for them not to do it. 

So I’m happy to talk preemption. I am happy to talk stare decisis. I’m happy to talk Supremacy Clause. I’m happy to talk enumerated powers or any other legal concept you want to talk about. 

What I will not do is let State and local prosecutors and State and 

local law enforcement be disparaged and say we trust you to handle homicide cases but we’re not going to trust to you handle immigration cases. That I will not do. 

I started this debate months ago saying I am happy to find a 

synthesis between the respect for the rule of law that defines us 

as a Republic and the humanity that defines us as a people. I am 
80 

happy to do that, to search for that synthesis. But I am not going 

to pursue the humanity at the expense of the respect for the rule 

of law. I’m not going to do it. 

Sheriff, do you think you’re capable of enforcing immigration 

laws if your jurisdiction—if your jurisdiction decides to pass ones 

that are not inconsistent with, but consistent with Federal law, do 

you think you’re capable of doing that? 

Sheriff BABEU. Absolutely Mr. Chairman. And this is to your 

point. And I appreciate your remarks because it quite frankly was 

offensive to hear that. I have close to 700 men and women that 

work in our sheriff’s office who risk their own personal safety, their 

lives, and oftentimes for those who are illegal. We do not differentiate. And we have several hundred of my staff who are Hispanic. 

What are we saying about them? 

And the fact that we swear an oath to preserve, protect, and defend our Constitution, we put our lives on the line for all people. 

And the fact that we’re in this conversation, this debate today, you 

trust me, you trust every law enforcement officer in America to 

deal with not only the most complex issues for U.S. citizens, that 

we can make life-and-death decisions, the only profession in our 

land that can take another person’s life, and yet we’re saying here 

we’re not smart enough to be able to ask questions and to call out 

to help for ICE, which is what we did. We’re not asking for something that we didn’t have. I only had 13 of my deputies and detention officers who are 287(g) certified. 

I’ve got a full plate in Pinal County. I don’t want to do ICE’s job. 

But we should be able to talk together and work in concert together to solve an issue. How did we get to this point that the cops 

are now the bad guys? And it’s because that we, as a country—Republicans and Democrats—have failed to address this issue and to 

solve it. 

So we’re put in the cross hairs and are disparaged and that of 

course our motivation, and this is one of the casualties of this, the 

undermining not just of the rule of law, but those who preserve 

and protect on a daily basis every person’s safety. 

Mr. GOWDY. Well, Sheriff, I appreciate it. My time is up. If we 

have a second round, I will get the district attorney to help me understand how city council members in certain cities are smart 

enough to ignore Federal law and create sanctuary cities, but these 

guys aren’t smart enough to enforce Federal law. We will get to 

that in the second round. 

With that, I would recognize the gentlelady from California Ms. 

Lofgren. 

Ms. LOFGREN. I wonder if I might allow Mr. Gutierrez to lead 

ahead of me. 

Mr. GOWDY. Certainly. I recognize the gentleman from Illinois, 

Mr. Gutierrez. 

Mr. GUTIERREZ. Thank you. First of all, I think this debate has 

gone really in the wrong direction. It’s almost as though this side 

of the aisle now is against the cops and against enforcement and 

is for murderers and criminals and drunk drivers. Nothing could 

be further from the truth. 

When we introduced comprehensive immigration reform, the first 

400 pages of the 600 pages were enforcement, enforcement, and en-
81 

forcement. More police officers. More ICE agents. And I think it’s 

regrettable that we have a debate in which somehow this side of 

the aisle is weak, this side of the aisle is somehow unsympathetic 

to the murdering of children. We are not. We think those despicable foreigners that come to this country should be the first in 

line to get kicked out of this country after they’ve paid the price 

in our prisons and our penal system. 

But to somehow, all of a sudden—because this is the debate that 

we’re having—that all the 11 million undocumented workers in 

this country get reduced to drug dealers, to gang members, to part 

of cartels? That is just not the truth. 

And so as I hear this debate today, I say to myself, what happened to the eight, nine hearings we had in which people came forward to testify and they said, we can make a decision. Are our 

crops going to be picked in foreign countries by foreign hands or 

are they going to be picked here in the United States by foreign 

hands? Either way, that backbreaking dirty, filthy work is probably 

not going to be done by us. 

So there is a reality in America. We had debates and we had witnesses come forward to say, let’s fix the broken immigration system 

because they’re not all gangbangers. They’re not all drug dealers. 

They’re not all murderers. They’re not all people who are racing 

down the streets killing people while they’re drunk. You know who 

they are? They’re the moms and dads of over 4 million American 

citizen children caught up in a broken immigration system. 

And what do we really want? Do we want you, Sheriff, do we 

want the law enforcement agencies going after the moms and dads 

who are waking up every day to provide for their American citizen 

children? I say no. But here is what’s happening. There was just 

a study, 41 percent of Latinos said they are less likely to speak. 

And those are the ones that are legally in the United States. 

It is as though the undocumented workers in this country are 

somehow a pariah on which all of the evils of our society and all 

of the ills of our society should be thrust upon. That just is not the 

case. And to say to hundreds of thousands of young children, one 

of the things that I always consider is I certainly hope that my 

children are never judged by my actions. My children should be 

judged by their own actions. And children brought here as children 

to this country should not be judged by the actions of their parents. 

They were not knowingly doing anything. They did not have the 

will to make a decision to come here or not. 

They have come out of the shadows. I mean everybody says, oh, 

well, those dreamers. You know what they did? They applied. They 

said, I’m here out of status, government. And you know what the 

government? They didn’t send them back a letter that said, welcome, come on down, happy to have you here. You know what they 

sent them a letter? They said, come on down and give me your fingerprints and prove to me that you are not a gangbanger, a drug 

dealer, or anybody involved in criminality. And if you can do that, 

I am going to allow you to work while we fix our broken immigration system. 

So all I am trying to say here this afternoon is, we started so 

well. January, February, March, April, May. Part of June. Let’s finish it. Let’s not demonize. Let’s not pick winners and losers. Let’s 
82 

just say, we’ve got a broken immigration system. Because I am 

going to tell you something and I’ve told Mr. Gowdy this. I’m for 

E-Verify so that every American gets first crack at any job in 

America. I’m for whatever you need on the border if you think you 

need more of that. I’m for more enforcement. But I’m also for humanity. I’m also for treating people like human beings. 

So I don’t have questions for you. I simply have a plea. Can’t we 

just move this agenda forward? You can get what you want because 

I’m ready to sit down and give enforcement and not question you. 

All I’m trying to say is, it takes 218 votes. So what are we going 

to do, have this fight again? We’ve seen this before. And you know 

what you have got? You have got millions of people when they introduced almost this identical legislation and they came to the 

streets and they protested and they elected people like me and others to say, okay, let’s fix it. 

I have gone too far, Mr. Chairman. I want to say, I joined this 

Committee after 20 years of service on Financial Services to fix this 

problem. I’m not for criminal. But I am for decent, humane treatment of millions of workers—not foreigners that came here to do 

damage, but immigrants who came here to contribute. 

Thank you so much, Mr. Chairman, for your generosity. 

Mr. GOWDY. I thank the gentleman from Illinois. 

The Chair would now recognize the gentleman from North Carolina, Mr. Coble. 

Mr. COBLE. Thank you, Mr. Chairman. 

It’s good to have all of you with us today. 

Sheriff Page, as a sheriff of a State that does not share a border 

with Mexico, give us an idea of the impact that stricter immigration enforcement would have on the area that you serve. 

Sheriff PAGE. Well, it’s kind of related like to my jail situation. 

I have a responsibility in my county to know who’s coming in and 

out of my facility, as immigration should have the ability to be able 

to track who is coming into and leaving from our country. And the 

problem is right now, when I talk to the ICE agents from across 

the country and I talk to their representatives, they’re not getting 

the support from the people that should be giving them support in 

the government to let them do their jobs. Free their hands and let 

them to do the work they need to do. 

What was discussed earlier today, I’m sure that not every sheriff 

in America or every police chief in America wants to do immigration enforcement. But I do 100 percent support my Federal, State, 

and local agencies when we come together in task force and different groups to work together as a force multiplier. I just want to 

be able to back up ICE when they need help and they need my support. And the same thing with the Border Patrol when they need 

that request if I lived on the border. 

So I feel, Mr. Coble, that if we support our immigration officers 

in the State, we can do a better job identifying that percentage. 

And I know that all 11.5 million people that are illegal in this 

country are not criminals. But we want to identify those criminals 

and get them off the street and put them in prison and return 

them to wherever they came from and get them out of this country. 

And that is an obligation I have. 

Mr. COBLE. Thank you, Sheriff. 
83 

Sheriff PAGE. Yes, sir. 

Mr. COBLE. Sheriff, I think I know the answer to this question. 

But what good purpose will be served when we deport the criminal 

aliens? I presume they are probably in charge of the local gangs. 

Is that a valid conclusion? 

Sheriff PAGE. I’m sorry? 

Mr. COBLE. I said when we deport alien criminals, how is that 

helpful with you as the high sheriff of the county? 

Sheriff PAGE. As a sheriff, when we can remove criminal elements from our community, that does help to improve our communities by getting the criminals out. And I won’t get too heavy into 

the border, but again we also have to pay attention to stopping 

that flow back and forth because right now, like I said, we’re picking up individuals that are tied in with the Mexican drug cartel in 

North Carolina, in my community, and it’s not just my community 

in North Carolina either. And we are concerned when we see that 

activity traveling 2 to 3 days from across the border into our communities. 

And without a good, defined, secure strategy and tactics on our 

border to secure it, lock it down, we are going to continue having 

these problems. Even if we work toward fixing the immigration 

system, we’ve got to fix our borders, because if we don’t secure our 

borders in America, every sheriff in America will be a border sheriff. 

Mr. COBLE. Thank you, Sheriff. 

My friend from Arizona, in your written testimony you discussed 

at length the need for a secured border. While a secured border is 

vital to ensure that people do not come here in violation of the law, 

of what importance is robust interior enforcement, that is away 

from the border? 

Sheriff BABEU. Well, sir, I mean, I think it’s critical because for 

the first part of it is that almost half of the people that are here 

illegally now didn’t cross our border. They didn’t make an illegal 

entry. They would have never come in contact with U.S. Border Patrol. They came here on visas and they overstayed those visas. 

They came here legally. So whose job is it to enforce those laws, 

to police those individuals? 

Obviously, we know as well that a lot of the individuals that 

have come to our country engaged in terrorist activities have not 

crossed our borders. They have come here on visas. They have 

come here legally. We need to be aggressively enforcing our laws 

with regard to those individuals. 

But also I think what we’ve heard a little bit here today about 

is the criminal element. There is definitely a disproportionate number of criminals that’s crossing our borders and coming into the 

country. And again, that’s our responsibility. The jails are full of 

criminal aliens. And that’s not to say that every person here of the 

11 million is a criminal, but there are definitely extremely large 

numbers of criminals coming into our country. 

With our limited resources that we have, according to the Obama 

administration’s numbers, we deported 225,000 convicted criminals 

last year, 225,000. That’s half the population of the State of Wyoming. That’s, you know, bigger than the Marine Corps when I was 
84 

in it. That’s a lot of people. And we’re not even scratching a dent 

in this criminal alien problem, as well as the gangs. 

So our involvement, our enforcement is critical, critical, critical 

to community and public safety as well as national security. 

Mr. COBLE. Thank you all again. I want to beat that before that 

red light illuminates. Alamance County has been mentioned twice 

today. It is my belief that that matter has still not been resolved. 

But we can talk about that at a later date. In any event, good to 

have all of you aboard. 

I yield back, Mr. Chairman. 

Mr. GOWDY. I thank the gentleman from North Carolina. 

The Chair would now recognize the gentlelady from California, 

the Ranking Member of the Subcommittee, Ms. Lofgren. 

Ms. LOFGREN. Thank you, Mr. Chairman. First I would like to 

ask unanimous consent to include in the record eight letters in opposition to this bill. 

Mr. GOWDY. Without objection. 

Ms. LOFGREN. And I would also like to ask, I want to make sure 

that—I think I was precise but I want to double back and make 

sure—because I think what I said in my opening statement was 

that the Justice Department had concluded that the Alamance 

County sheriff and his deputies had engaged in discrimination. And 

I would ask unanimous consent to put into the record the findings 

from the Department of Justice that the Sheriff’s Department did 

engage in intentional discrimination. And my colleague Mr. Coble 

is correct. They also filed a lawsuit which is still pending. So we’re 

both right. And I would ask unanimous consent that both the complaint and the findings be made a part of this record. 

Mr. GOWDY. I never doubted for a moment you were both right. 

And without objection. 

[The information referred to follows:] 
85 

ACLU 

AMERICAN CIVIL LIBERTIES UNION 

WRITTEN STATEMENT OF 

THE AMERICAN CIVIL LIBERTIES UNION 

For a Hearing 011 

H.R. 2278. IiiI' " Strengthen tld Fortify nf ~t ln nl Att" (Th . SAf E M il 

Sub rn iu rd III the U.S. IIoll5t or RellrtSe""Uins COll1l11iuH' on tht judiciary 

June 13, 2013 

ACLU WuliingU)n Ll'gis li ve o rnce 

Laura W Murphy. Direclur 

Neema Singh Gulian;. Legislalive Counsel 

Ruthie Epstein, Lobbyist 
86 

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 

aftlliates nationwide dedicated to enforcing the fundamental rights of the Constitution and laws 

of the United States. We offer this statement to the House Judiciary Committee in opposition to 

H.R. 2278, the "Strengthen and Fortify Enforcement Act" (The SAFE Act) - a proposed piece of 

legislation that represents a significant step backward in our nation's etforts to refonn our broken 

immigration system. 

We are concerned by H.R. 2278's piecemeal, enforcement-only approach to immigration 

refonn Any proposed legislation must address the existing deficiencies within our immigration 

detention and deportation systems in a comprehensive fashion, including a pathway to 

citizenship for the millions of undocumented immigrants that are essential to our communities 

and economy. Instead of this comprehensive approach, H.R. 2278 proposes a series of 

unnecessary and ineffective immigration enforcement provisions that would waste resources and 

overwhelm our justice system. 

Tn addition, this Act will tum millions of undocumented immigrants into criminals who 

may have entered the country without proper documentation decades ago. Existing law 

acknowledges that undocumented status alone is not a crime. Section 315 would amend this 

long-standing, common sense approach, by stipulating that the crime of illegal entry continues 

until an individual encounters an immigration official. As a result, millions of law-abiding 

aspiring citizens who may have entered the country without proper documentation years ago, 

whose illegal entry is not a punishable criminal offense, would have their presence alone 

transformed into a crime. 

Moreover, the SAFE Act contains numerous other provisions that raise significant civil 

rights and civil liberties concerns. For example: 

• The Act would override the Supreme Court's recent decision in Arizona l'. United Slatesauthored by Justice Kennedy and joined by Chief Justice Roberts and others-and create 

unprecedented state and local authority undennining federal immigration law and policy 

Under its provisions, states and localities would be pennitted to enact, enforce, and 

implement their own civil and criminal immigration laws. The longstanding federal 

framework governing state and local enforcement of federal immigration laws would be 

completely abandoned, promoting a patchwork of immigration enforcement that would 

facilitate racial profiling, discrimination, and unfair treatment of immigrants and citizens; 

• The Act could result in a massive increase in immigration detention by expanding mandatory 

detention, prohibiting the use of alternatives to detention (AIDs), which can save millions of 

taxpayer dollars, and permitting prolonged and indefinite detention in certain circumstances; 

and 

2 
87 

• The Act unnecessarily and unjustifiably increases existing criminal and civil penalties for 

illegal entry, which will further overwhelm federal courts with immigration cases and divert 

resources from the prosecution of more serious crimes. 

II. H.R. 2278 fails to provide a comprehensive approach to fix our nation's 

immigration system, including a path to citizenship. 

H.R. 2278 adopts an enforcement first and enforcement only approach to reforming our 

nation's immigration system, failing to include a path to citizenship for the millions of 

immigrants who contribute daily to our communities and economy. 

Immigration enforcement, both at the borders and in the interior, is at an all-time high, 

and has come at enormous and unnecessary cost to American taxpayers. In 2012 alone, the 

Department of Homeland Security ("DHS") spent nearly $18 billion on immigration and border 

enforcement. l At the borders, unprecedented militarization has resulted in human rights 

violations and seriously threatens the quality of life in border communities. Wasteful programs 

such as Operation Streamline's costly criminal prosecutions of border-crossers have diverted 

federal court and prosecutor resources, contributed to an expansion of federal contracting with 

private prison facilities, caused serious overcrowding, and skewed the inmate population. For 

the first time, the majority sentenced to federal prison are Hispanic or Latin02 House 

Appropriations Committee Chairman Hal Rogers has correctly said about southwest border 

spending: "It is a sort of a mini industrial complex syndrome that has set in there. And we're 

going to have to guard against it every step of the way.,,3 

In the first term, this administration deported over 1.5 million people-more than in any 

other single presidential term." In 20\2 alone nearly 410,000 people were deported - an all-time 

record for annual deportations.' Despite the administration's claims that it prioritizes the 

removal of individuals who pose a risk to public safety, nearly one half of those deported had no 

criminal record at all, and a significant proportion of the remainder committed no serious 

offenses threatening public safety6 As a result, American families have been separated in 

devastating numbers: between July 2010 and September 2012,23 percent of those deported1 In FY 2012, spending for CBP, ICE, and US-VISIT exceeded bv 24 percent total spending for the FBI, Drug 

Enforcement Administration (DEA), Secret Sen-ice, US Marshals Service. and Bmeau of Alcohol Tobacco, 

Firearms and Explosives (ATF). Immigration Enforcement in the [If/ited ,)'tates: The Rise ofa Formidable 

,\fachiner.v, Migration Policy Institute, Jan. 201:1, availahle oJ 

l:!!Jp--.: li'}]""- .1l1jg@r-!~:~_m:~JLCLQ!g'~illJl&t~])fu[c~11t~n!.DiJJnJ;:5J2(fJP'cITPSJJ!,-

~ U.S. Sentencing Commission, 2011 ANNUAL REPORT, Chapter 5, available at 

JJllQlL~Y~Y}IJ:l_S~~,gQ-'~Ll2~t~L1!XLd_~~ti§Jk~L AllfllillL Ed~P911L<lil~L~Ql:!I~~QQQ1~~2QJ1L2Q1JJ.\mm.nJ_E.m~Q!LCl1,1l-1~2·llli 

r 

j Ted Robbins, u.s. Grows An Industrial Complex Along Tlte Border, NPR, Sept. 12,2012, 

hHp_" !~":"-'-""!l" .J1Pf·~)J212i lU !t)iij AJ-U (;!Q 7 i~-1} llil-::§_-b'T~2.'-Y i:-~ln:-iRtl!1SJ_D~J:£QnlpJt~k~loll£·:JJle-1JQrfkJ. 

4 Corey Dade, Obwna Adminislration Deporled Record 1.5 Jiillion People, NPR, Dec. 24,2012, available al 

11! W ~ {~'-n~ Yl· nPJ:PIwbio gsjj~~il_llpQJjJi~:~!2nl~_/ t2~~J/H!...7~7mm2_h)J)<H!!I1 :J1sl nli tti_SJEllio_u:QE;l'_O)'J t;_~_-::IT~.,:Jm:t: 1~5-:m-ilJj911-_ 

News Release, TCE, 1"1' 2012: 1(~' announces year-end removal numbers, highlights/oeus on key priorities and 

Dec. 21, 2012, 
88 

204,810 individuals-were parents of US. citizen children7 From a snapshot survey taken in 

2011, at least 5,200 children were in foster care as a result of their parents' deportation8 

Wasteful detention spending of $2 billion annualllied to the incarceration of 429,000 people in 

201 11°-despite the existence of etTective and less expensive alternatives to detention, which are 

routinely used in the criminal justice system and endorsed by organizations including the 

Heritage Foundation, the International Association of Chiefs of Police, the National Conference 

of Chief Justices, and the Council on Foreign Relations' Independent Task Force on U.S. 

Immigration Policy." 

This enforcement-first and enforcement-only strategy has continued unabated in spite of 

the fact that apprehensions at the southwest border are at their lowest levels in 40 years, net 

migration from Mexico is zero, and border communities are among the safest in the nation12 

Our nation can no longer afford proposals such as H.R. 2278, which provide an enforcement 

only approach to our immigration system. Legislation to reform our immigration system must 

chart a more reasonable course by creating a welcoming roadmap to citizenship for hardworking 

aspiring Americans who daily contribute to our communities, and addressing existing 

deticiencies with our immigration detention and enforcement system. 

III. H.R. 2278 represents an unprecedented expansion of state and local immigration 

activity which harms residents and economies and leads to racial profiling. 

discrimination, and enforcement errors 

HR. 2278 seeks to undo many decades of Supreme Court precedent, including the 

Court's recent decision in Arizona v. United States. The Court has repeatedly held that states and 

localities have only a narrow role to play in immigration matters. As the Court has explained, 

the nation must have a single, uniform immigration system; immigration enforcement involves 

delicate foreign affairs judgments; unnecessary harassment of foreign nationals must be avoided; 

and decisions about how to enforce the laws as written necessarily require consideration of 

national policy objectives. 

Seth Freed Wessler, Xear~v 205K Deportafions ojParenls oIU .. 'i Cifizens in Jus/ Over TH'U rears, COLORLINES, 

Dec. 17,2011. available at ~ttJp://~~)1031iJ!~§J;:()ntim;:~l):i~~'¢_?aJ)12/J2/~J_s_ skp9_rts_)llgLe~~t}lgl1}_ ~Q(H"i,_-R_'!l~1Jt~J~LmJ---, 

8 Slwllered Famihes: The Perilous Interseciion (?fJmmigr{J/lOll fi:n/orcemenf und Ihe ('hild We?fare Sy:,dem, Applied 

Research Center. Noy. 201 L httrr/~1Kg_.Qrg!:Jl<1n£Jf:~lf~11!ih~~_. 

rJ The ,\Jaih (?! lmmigraliofl TJefeniion: Runmwj)/ {oslsIor lmmigraiion neleniion no .\/oi /Idd Up to Senslhle 

Policies, NatioI1:1.1 Inmligration FOnllll, Aug. 2012, 

11luL1\~J':vJ~· jllmngr:;'JJ1Ql}[ Q[lil!l.Qrg!i.i}illg~~~12LQ;Ki§~Mj!lh.Q O):rrmiJ"I!I~~iQJ1D_~J~u1i91},llii.e. 

10 DHS Anl1lHll Report, immigration t."~fol'cement Actions: 2011, Sept. 2012, available at 

ill!J~/~~~~Y}:Y. Qh~ _ES!~5!1:~~/0Si~llttJi ks/plJ.b E~Qtj~)!~?{i.lm]ljgr~-gi01}-_~~~lj.1§t)~s!9~!f9!l~CfllC_m _~:n.:_2f! ! .Lflclf 11 Julie Myers Wood and Steve J. MartiIL Smart Alternatives to Detention, Washington Times, March 28,2013, 

available at nml)·//1H'mWnsll''l!,12,u",llCS,'C:OIllff1'C.WS, 

[Inited ,States: The Rise ola Formidable l\fachinety, I\1igration Policy Institute, 

at htL12ifu:...~.!u.Dil{!mis.!TI[tQ.fu:\ .oJ.R1!!Jb~i~liliIT~~1119Jl1illJillr~jJ..£tJil~QIL 

4 
89 

The Act would override the mandate of these Supreme Court cases-without, of course, 

doing anything to address the fundamental reasons that state and local authority in the 

immigration arena should be narrowly constrained. The Act would radically expand state and 

local statutory authority to enact separate immigration laws and to enforce federal immigration 

laws without federal supervision or guidance, while providing grant funding to support such 

actIvitIes. In addition, the Act would require states and localities to comply with U.S. 

Immigration and Customs Enforcement (ICE) detainers, and expand existing programs, such as 

287(g) which have promoted fear and discrimination in so many of our communities. 

a. State and local enforcement of immigration laws by untrained personnel lead to 

enforcement errors and racial profiling 

There are good reasons for requiring federal training and oversight of local police who 

take on immigration enforcement timctions, including the documented record of civil rights 

abuses by state and local police engaged in these efforts across the country. 13 Yet H.R 2278 

does not contain any provisions requiring state and local police to receive specialized training in 

immigration enforcement, nor does it contain sufficient oversight mechanisms to prevent abusive 

and discriminatory enforcement practices. 

Under the Act, evelJl state and local police department would be permitted to enforce 

federal immigration laws. This includes local law enforcement agencies that have been or are 

being investigated by DOl's Civil Rights Division (CRT) for discriminatory policing targeting 

Latinos and other people of color. For example, the DO] CRT earlier this year announced, 

following a comprehensive investigation, that the New Orleans Police Department (NOPD) has 

engaged in patterns of misconduct that violate the Constitution and federal statutes. The DOJ 

report documented multiple instances of Latinos being stopped by NOPD otlicers for unknown 

reasons and then questioned about immigration status. Members of the New Orleans Latino 

community told DO] that Latino drivers are pulled over at a higher rate than other drivers 

because officers assume from physical appearance that they are undocumented14 H.R. 2278 

would legitimize NOPD's practices by according its officers unsupervised immigration arrest 

and detention authority. Similarly, the effects of DOJ's investigation of the Suffolk County 

Police Department (SCPD), which culminated in a September 2011 letter finding in part that 

SCPD was improperly using roadblocks in Latino communities,15 would be nullitied by H.R 

2278's encouragement of officers to use their own untrained judgment to determine who "is an 

alien." 

In East Haven, Connecticut, where four officers were recently indicted because they, 

inter alia, "stopped and detained people, particularly immigrants, without reason, federal 

prosecutors said, sometimes slapping, hitting or kicking them when they were handcutl'ed, and 

once smashing a man's head into a wall,"'" a Yale University study found that 56 percent of all 

13 Sec, C.g., ACLU Statement to the House Homeland Security COlllmittee for a Hearing OIl "Examining 287(g): The 

Role ofStnte and Locnl Enforcement in IumugrnlionL'H\/." (M1I. 4, 2009). 

14 DOJ CRT, "Investigation of the Nc\y Orleans Police Dcp311mcnt:" MaL 16.2011, 6J, available at 

hHp~/l)~J:·y}yj!!~t~9f.gQYl~rt/Q12~llft~~l~1!nQrrd ___ (e-P_Qftp{if 

15 DOJ CRT, Suffolk County Police Department Technical Assistance Letter (Sept. 13,2011), available at 

hUp:!/v,.·\\ \\ .justice.l!oY/crtiabOllt/splldoGumen!s':surro]kPD TA 9-1 ~-11.jJdr 

16 Pctcr Applcbomc. ':Policc Gang Tyrannizcd Latinos, Indictmcnt Says." Nc,,, York Timcs (Jan. 24, 2012). 

5 
90 

traffic tickets issued by the police department in 2008-09 were to Hispanic drivers, although 

Hispanics comprise only 5.8 percent of East Haven residents. 17 HR. 2278 would empower 

roh'lle officers and departments like East Haven's to target immigrant communities pretextually 

and engage in biased policing with impunity, regardless ofDOJ oversight. 

We know that U.S. citizens and others lawfully in the country are illegally detained and 

deported. Jakadrien Turner, an African American U.S. citizen from Dallas who was reported 

missing in 2010 at age fourteen, made national and international news when her family 

discovered that ICE deported her to Colombia. Turner spoke no Spanish and possessed no 

Colombian ill prior to her deportation. '" ICE has detained more than 2 million people since 

2003. Extrapolating from her research, Professor Jacqueline Stevens estimates that across the 

United States ICE in the last decade may have incarcerated "over 20,000 US citizens and 

deported thousands more",9 HR. 2278 will increase the frequency of these mistakes by making 

untrained state and local law enforcement officers the front line for immigration status inquiries 

initiated based on biases inherent in hunches, stereotypes, and prejudice,,20 

b. State and local enforcement of immigration laws harms U.S. citizens and 

documented immigrants 

State immigration laws are sold as targeting undocumented immigrants, but they 

trequently ensnare lawtul residents and US citizens. These etfects are not hypothetical; the 

aggressive enforcement initiatives already underway in some localities offer a cautionary tale. 

For example, Julio Cesar Mora, born in Avondale, Arizona, is a US. citizen of Mexican 

ancestry. On February 11, 2009, Mora and his then-sixty-six-year-old father (a lawful permanent 

resident who had lived in the United States for thirty years) were on their way to work. Just 

yards from their destination, they were surrounded by two vehicles from the MCSO, and ordered 

out of their pickup truck. They were frisked, handcuffed, and eventually taken to Mora's 

workplace - the site of an MCSO immigration raid. Mora is still astounded by the treatment he 

received. As he explains, "[m]aybe it was because of the Campesina radio station sticker on our 

bumper or.. because my dad was wearin? his Mexican tejana [hat] and they thought we were 

illegal. But they never bothered to ask us." 1 

The state laws also expose to state arrest and criminal detention immigrants who are 

entitled to congressionally mandated fonns of relief, but who do not carry proof oflawful 

immigration status and in many cases are not yet recognized within federal databases as 

"Rights Working Group, FACES OF RACIAL PROFILING: A Report from COllullunities Across America (2010), 

10, a\'allable at lJ1I~j[1_igh~s}Y9I~~nggr9\!P_.gIg(si~~?J,(~d<!!1J!iTile_~(1~;ePQTtT~_\Lp_dr 

1S '-Runawav US girl Jakadrien Turner deported to Columbia," BBC News (Jan. 5, 2012), available at 

IJJ ill) [~n~1Y'-,_t'Q~·. ~~}~ llly~It~~-"'_~/l'! Qr1d-u~-=-~i!n<!g.1_-16~t~{!_~:-J_O 

19 Jacqueline Stevens, "U.S. GOvcllUllcntUnlawfully Detaining and Dcpo11ing U.S. Citizens as Aliens,-- 2011 VA. J. 

Soc. POL'y & L. 606, 619-30. available at h!_~p-jf,-~~~\-,)' j~;':~_H~lin~sJ~\'~lI~o~'--WSJs:v~n~X~El~,~2._QJJJ~lf 

~n Villas af Parh"ide Par/ners v. ('il.v (~fT'armers Branch, No 10-10751 (5th CiL 2012) 

:1 Anticus Brief of the Leadership Conference on Civil and HUIl1:111 Rights et a1. inAr;zona v. United States, No. 11-

182 26,2(11),27-28, ayuilable at 

6 
91 

possessing lawful status. Those harmed by being picked up for lack of documentation will 

include individuals from nations experiencing crisis, victims of violent crime, asylum seekers, 

and relatives of US. citizens. For example: 22 

• In 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act 

CNACARA") to provide immigration benefits to certain asylees. A plaintitl' in the 

ACLU's lawsuit challenging a South Carolina law came to the United States in 1989 to 

escape a civil war in Guatemala. He obtained an Employment Authorization Document 

("EAD") through NACARA. He must apply for renewal of his EAD on an annual basis, 

but due to administrative delay, often goes for weeks or months before he receives a 

current EAD. During these times, he lacks a registration document. 

• Congress created the U-Visa to give legal status to victims of certain crimes and to 

encourage them to aid in investigation and prosecution. One of the plaintitl's in the 

ACLU's Arizona lawsuit is an immigrant from Mexico who entered into a relationship 

with a man who became abusive. After he slashed her tires, destroyed her clothes, and 

defaced the walls of her apartment, she became afraid for her safety and that of her 

children. She immediately applied for U-status as a survivor of violent crime, but it took 

fifteen months before she received a registration document. 

• A plaintiff in ACLU's Arizona lawsuit was a thirty-five-year-old woman of South Asian 

descent. Because she practices Catholicism, she was severely persecuted in her home 

country, which is Muslim. She was kidnapped and sexually assaulted, but authorities 

refused to investigate her attack. She and her family were forced to flee to the United 

States. During the pendency of her asylum application, she lacked a registration 

document. 

Immigrants eligible for lawful status in addition to U.S. citizens therefore bear a severe 

share of the burdens imposed by state and local efforts to enforce immigration laws. 

c. State and local enforcement of immigration laws harms local economies and 

businesses 

All residents suffer from the economic hanns associated with state and local involvement 

in immigration enforcement. For example, a severe economic impact has been felt in states that 

have implemented immigration enforcement laws, even in cases where courts have barred 

implementation of the core provisions of these laws. In 2011, Georgia suffered a $300 million 

estimated loss in harvested crops statewide, with a $1 billion total estimated impact on Georgia's 

economy23 Arizona's losses include $141 million in conference cancellations alone and $253 

million in overall economic outpUt. 24 

These laws have a chilling efl'ect on international investment as well. In November 2011, 

a German Mercedes-Benz executive, visiting an auto plant in Tuscaloosa, Alabama, was arrested 

"' Examples all compiled in id. 

~3 Tom Baxter, Haw Cieorgia's Anfi-Immigration Taw ('ould Hurl/he S'/ale 's (und Ihe ,Valion '.~) [i;COllOJ1lY. (Oct. 

2(11), a\,ailable at hLtp:l/v\>w,"\,.arne!"lca!mrogress.org/issues/201 lfl0/georgia jmmlhFfation.html 

2-1 Lccayo, supra. 

7 
92 

during a routine traffic stop for failing to produce evidence that he was in the United States 

legally. A Japanese Honda employee was subsequently cast under suspicion when his 

international driver's license was deemed insufficient as a registration document25 Two of 

Indiana's largest employers made their objections clear. Eli Lilly and Cummins, Inc. (with a 

combined market capitalization of $62-billion) issued a joint statement in opposition to Indiana's 

legislation "From the perspective oflarge Indiana employers with global and diverse 

workforces, Lilly and Cummins believe that there are compelling business reasons to oppose 

Senate Bill 590. Anti-immigration and English-only laws impede the ability of Indiana 

businesses to be competitive in global markets, and will make it more ditlicult for Lilly and 

Cummins to grow in Indiana."26 

d. State and local enforcement of immigration laws harms victims and witnesses of 

crimes 

Law enforcement leaders have also cautioned against putting state and local police in the 

position of enforcing federal immigration laws because this alienates the communities they serve 

and endangers everyone's public safety by making victims and witnesses afraid to come forward. 

A leading law enforcement research group, the Police Executive Research Forum (PERF), has 

advised that "active involvement in immigration enforcement can complicate local law 

enforcement agencies' efforts to fulfill their primary missions of investigating and preventing 

crime ,,27 As Salt Lake City Chief Burbank has testified, state immigration laws like Utah's 

"undermine[] my ability to set law enforcement priorities for my agency because I cannot 

prohibit the allocation of already scarce resources toward civil immigration enforcement instead 

of violent crimes and criminal enforcement,,2R Tuscaloosa, Alabama, Police Chief Stephen 

Anderson recalled, "[w]e were told they were going to provide training for us, and that didn't 

happen. You just had a group of people who wanted a bill passed, and they did it No guidance, 

no training, no funding. ·,29 

Former Arizona Attorneys General Terry Goddard (D) and Grant Woods (R)joined 42 

other former state attorneys general in urging the Supreme Court to recognize that law 

enforcement is harmed by state laws. They emphasized that the state laws are a direct threat to 

gains made recently in community policing: "State and local law enforcement otlicials have 

devoted substantial time, energy. and resources to fostering these relationships. SB 1070, by 

turning local officers into immigration agents, and by increasing the likelihood of racial profiling 

against certain communities, will undennine the progress that these programs have painstakingly 

2~ Bad for Busilless: Holt, Ami-Immigration Legislatioll Draills Budgets and Damages States' Economies. 

T11l111ih'Tation Policy Center (Mar. 2o, 2012), a\·ailable at 111tl-!:{!~\ }~~~_i~J1IJ!ig[~liQX1P9ti~y ._{2n1j~~t:J"!~'!~/9<!~i-i)i~~jllS'5Jjh9~y-anti=jnm!lg@tiQ!l~gi~lilllQJ1~qI~it~b_1;!Qg15-and-dmJ-)ftg~_?-=-~11t~~~~t;?1:Q~W.2~2=QQo nOJ}]i£ 

:::6 Available at J Jllp_'/h~ \\:}\ jJII1M:U In(;gmp';:'1S_:J __ I..~Qnll~Ur!:t~/l~lha~19_~.:::foJ:-:-jJ.n111igr~ tiQIJ~r~19lJ!1:::i1J.=-imij1lTh1=@ka ~~~-ll},~_\l::­

informatioll-on--oppo/ 

:::7 HoIImasler el aI., supra al ",-v, 

~8 Burbank, supra 

:« Reyes, supra, Loc<lllaw enforcement and local government associations urged the Mississippi Legislature not to 

cnact a similar law, cmphasizing that "another state w~funded mandate passed dmvn to local tax paycrs and local 

governmenLs of Mississippi ,,,,i11 not resoh'e the problem of i11egal inllllih'Tation." See Letter of Mississippi Sheriffs' 

Association ct aI. (Mar. 26. 2012). 

8 
93 

achieved. These problems will negatively impact all enforcers within the criminal justice 

system, from line officers to prosecutors, impeding their efforts to ensure public safety.,,3o 

Similarly, an amicus brieftiled by the Major Cities Chiefs Police Association, PERF, and 

the National Latino Peace Officers Association, as well as 18 present or fonner chiefs of police, 

explains in detail how "[w]hen every individual with whom the police interact must 

be subjected to immigration scrutiny, it is inevitable that law-abiding witnesses and victims of 

crimes will avoid police interaction, allowing perpetrators to escape and creating an atmosphere 

of fear that will spill over to the rest of the community. And this impact will not be restricted to 

the states that adopt immigration enforcement law. It will spill across borders, and adversely 

affect law enforcement in states that do not adopt such policies.,,31 

These law enforcement experts, who know best how to promote public safety in their 

communities, vouchsafe that state and local involvement in immigration enforcement damages 

their ability to work etTectively. 

IV. H.R. 2278 will resnlt in a massive expansion of onr immigration detention system 

a. Mandatory custody and use of alternatives to detention 

The Act would dramatically expand the sweep of mandatory detention, denying the basic 

right to a bond hearing to new categories of detained immigrants, and significantly expanding 

our already bloated immigration detention system. This expansion comes at a steep price to 

taxpayers as well as to principles of due process; immigration detention costs $164 per person 

per day - $2 billion annually.'2 

INA 236(c) already requires the detention of immigrants subject to removal based on 

certain criminal offenses, with no opportunity to seek release on bond or supervision during the 

pendency of their proceedings. This legislation would expand this mandatory detention statute to 

cover individuals with decades-old offenses, including those that predate the statute's enactment 

15 years ago. It would also allow DRS to tal<e custody of a person "any time" after he is released 

from criminal custody and put him in mandatory detention, even if that release occurred years 

ago. 

H.R. 2228 would also exacerbate the damage already being done to our budget, and our 

communities, due to misapplication of current mandatory custody laws, by needlessly expanding 

their scope. DRS currently misapplies the mandatory custody laws, enacted by Congress in 1996, 

in three key ways. 

10 (Mar. 26, 2012), available at 

at 

httnPill'J~'11lli1igTIJb!lLQ£-~00 JltC DiM!-l!l1/abnLrn121iGQ!iml?1~l!1!!QnM~_S:_;fmrt.J2tQ}iqy,1:li~;f~U_~ 

J~; ____ r~_~PJ:mge}J-({!nlGl.l~lQt~-}Qg{lJl'1~Y~!lf!)[g~mt3jJt9tIi~tnl~-J1J-!J:tqlt~s:k,c1?Jll·PQf 

_:\2 National Immigration Forum, The Alalh (?fJmmigralion [Jelen/ion. (Aug. 2012), 1, availahle al 

111tp://\\-'\\ \\ .11111Tlil'l-aL10nCOTUlTI.org/jmages/tlploads:'MallmIl1l11l11L'lI'tllonDetelltioH.]Jdr, and DHS FY 2012 BLLdget 

Justification, 66_ avai fable al httR-I~6ITIJuih,?_g~~~:L~li1JT'dlV/~~~(dh~-:£QI!gr~i91H~!l-:Q},illgd:-=ilJ~Jfi9iltiQD::1;t2J)J L"llit 

9 
94 

First, DHS improperly incarcerates, without individualized consideration, immigrants 

with substantial challenges to removal that would allow them to remain in the country lawfully. 

Section 1226(c) requires the detention of noncitizens who are "deportable" or "inadmissible" on 

designated criminal grounds for the pendency of their removal proceedings. Tn Maller of 

Joseph,33 the BIA established the standard for this custody detennination, holding that an 

individual is "deportable" or "inadmissible" within the meaning of 1 226(c), and thus subject to 

mandatory lock-up, merely when the government charges removability on a ground triggering 

the statute. In order to obtain a bond hearing, a noncitizen detained under section 1226(c) must 

demonstrate that it is "substantially unlikely that the [government] will prevail on a charge of 

removability specified in" section 1226(c)34 - effectively, that the charges are frivolous. 35 This 

nearly insurmountable standard - which one federal appeals judge has characterized as 

"egregiously" unconstitutional'" - has resulted in the unnecessary and costly detention of 

individuals with substantial challenges to removal, many of whom prevail on those challenges. 

Second, DHS already subjects immigrants to mandatory detention based on old crimesin some cases, crimes that took place well over a decade ago. Section 1226( c) requires DHS to 

take custody of noncitizens who are deportable or inadmissible based on certain designated 

offenses "when the alien is released" from criminal custody for those offenses. The 

overwhelming maj ority of federal courts to consider the issue have construed section 1226( c) not 

to apply where DHS takes custody of individuals months or years after their release from 

criminal confinement for an offense covered by the statute:'7 However, pursuant to the B1A's 

decision in Matter of Rojas, 38 DHS applies mandatory detention to individuals it arrests at all)' 

time after their release from criminal custody, vastly expanding the mandatory incarceration of 

individuals who have been at liberty for years leading productive lives in their communities . 

. '3 22 T. & N. Dec. 799, ROO (BTA 1999). 

3~1 S'ee id. 

l~ See Julie Dona, Jfaking Sense of "Substa!ltial~v Ufllike~r": An Empirical Analysis a/the Joseph Standard in 

l\iandatoJ'Y Detention Custody lleal'ings 5 (May 2(13), available at 

http://papcrs.ssl1l.com!so13/papcrs.cfm?abstmct_id= 1856758 (rcvic\yillg Joseph decisions from November 2006 

through October 2010 and finding that the BTA construes the "substantially unlikely" standard '-10 require that nearly 

all legal and evidentiary unccl1aintics be resolved in favor of the [goycmmcntrJ 

,6 [ljam. 430 F.3d at 1246 (Tashima, J., concurring) . 

. '7 See, e.g., Kol v. Flw()od, 2012 WL 156543R, at *R (D.N.J. May 2, 2012) (holding that § I 226(e)( I) applies only to 

noncitizens det1.ined at the time of their release from criminal custody for their specified removable offense); .Nunez 

v. F:lwaad, 2012 WL 11 R3701 , aL *3 (D.N.J., Apr. 9, 2012) (sa1lle)~ O/'tiz v. Tralder, 2012 WL R93154, aL *3 (D. 

UtahMar. 14,2012) (same); Ch/'istie v. Elwood, 2012 WL 266454, at*8 (D.N.I. Jan. 30, 2012) (same); Rosario v. 

Prindle, 2011 WL 6942560, at *3 (E.DXy. No\". 2R, 2(11), adopled hv 20 12 WL 12920, at *1 (EDXy. Jan. 4, 

2(12) (same): l'arjim v. Holder, 2011 WL 4829391, *6(D.N.J. Oct. 11. 2(11) (same); RlOnlo v. Holder. 2011 WL 

34R9613, at *3 (D. Ariz. Aug. 9, 2011) (same): Reekjin'd v. /Iviles, 20 II WL 34H 125, at *7 (D. N.J. Aug. 5. 

2011) (s3me);Jean v. Orsino, No. 11-3682CLTS) (SD.NY. June 30, 2011) (s3me); Sylvain v. Holder, No. 11-3006 

(JAP), 2011 WL 25R0506, aL *5-6(D.N.I. June 2R, 2(11) (same)~ /Iparieia v. Mulie/', No. II-cv-0437 (RJH) 

(SD.N.Y. Apr. 7, 2011) (same); LoU/saire v. Muller, 758 F. Supp. 2d 229, 236 (SD.N.Y. 2010) (same); Gonzalez v. 

ll118, 2010 WL2991396, aL *1 (M.D. Pa. Jllly 27, 20lll) (same)~ llang v. Lowe. No. I·CV-IO-D446. 20lll WL 

2044634, at*2 (MD. Pa. May 20, 2010) (same); Mones/lme v. Reiliv, 704 F. Supp. 2d 453, 458 (SD.NY 

20]())(smlle)~ Khod/' v. AddUCi, 697 F. Sllpp. 2d 774. 77R (ED. Mich. 20lll) (same)~ Scarlettv.ll11S, 632 F.Sllpp. 2d 

214,219 (W D NY 2(09) (same)~ Rromfieldv. Clark, 2007 WL 527511. at *4 (WD Wash Feb 14,2007) 

(same): Labadi v. Chertoff. 2005 WL 3157377, at *5 (ND. Cal. Nov. 22, 2(05) (same); Quezada-Bueio v. Ridge. 

317 F. Supp. 2d 1221. 122R (WD. Wash. 2(04) (same). Rul see Hosh v. [,lIeero, oRO F.3d 375 (4th Cir. 

2(12) (deferring Lo Matte/' afRoias). 

1S 23 L & N. Dec. 117 (BrA 2001). 

10 
95 

Third, DRS takes an overly narrow view of the statute's requirement that immigrants be 

kept in "custody," S'llaranteeing the wasteful and unnecessary detention of individuals who pose 

no flight risk or danger. In contrast to other provisions of the immigration laws that expressly 

reference the "arrest[] and de//en/ion}" of noncitizens pending removal proceedings, section 

l226(c) states that the Attorney General "shall talee into cus/ody" aliens who are inadmissible or 

removable as a result of their criminal histories..'9 The term "custody" has traditionally been 

interpreted by the federal courts to include not only physical incarceration but also alternatives to 

incarceration, such as electronic or telephonic monitoring, reporting requirements, curfews, and 

home visits 40 Congress should correct the DRS misinterpretation and make clear that the 

immigration context is no different. 

H.R. 2278 also can be read to prohibit ICE officers from using etfective alternative 

supervision methods when detention is not necessary to ensure court appearance or protect 

public safety. Alternatives are routinely used in the criminal justice system and endorsed by 

organizations including the Heritage Foundation, the International Association of Chiefs of 

Police, the National Conference of Chief Justices, and the Council on Foreign Relations' 

Independent Task Force on US. Immigration Policy. ICE's current Alternatives to Detention 

program reports that 96 percent of active participants showed up for theirtinal hearing in 2011, 

and 84 percent complied with final orders. 41 DRS itself has atlinned that ATDs are "a costeffective alternative to secure detention of aliens in removal proceedings. ATD is integral to 

ICE's detention and removal strategies, as a cost-effective alternative for aliens who do not pose 

a risk to public safety, a flight risk, or are otherwise not suitable for detention at a secure 

facility."42 Smart use of alternatives can reduce unnecessary detention of individuals including 

DREAM-eligible students who came to the United States as children, asylum seekers fleeing 

religious or poli tical persecution, and long-time residents with US. citizen children and other 

family members. 

b. Indefinite Detention 

H.R. 2278 proposes a massive expansion of the immigration detention system by 

authorizing DRS to detain certain noncitizens for as long as necessary to conclude removal 

proceedings-even if that takes months or years-without access to a bond hearing, and to 

subject certain noncitizens who cannot be repatriated to their home countries to indefinite 

detention. 

Specifically, the Act authorizes the indefinite detention of individuals ordered removed 

but unable to be repatriated to their country of origin. Essentially countermanding the Supreme 

Court's decision in Zadvydas v. Davis, 533 US. 678 (2001), Section 31 0(a)(3)(C) of this bill 

allows DRS to detain those ordered removed more than six months, with no temporal limit, if the 

Compare 8 U.S.c. section 1216(a) \vilh section 1226(c). 

4n See, e.g. Reno v. Kara),', 515 U.S. 50,63-64 (1995) (holding, in sentencing context, that ,,,hethel an illdividualis 

"released" depends on if he remains "subject to I the custodian' 81 control," and not H' hether he is still subject to '~iail 

-like conditions") 

11 Julie Myers Wood and Steve J. M1rtin, Smart Alternatives to DetclltiOfI, Washington Times, March 18.2013, 

avai lahle al 11Lttl:LLTI~~_:--,~~ltiugLQ1)!inl~'i£QIIlL:n~:~/2f2lJLttlaJiI3hllmli -8 tts::r!k11i'L(1:JQ=-jl1mri.q,m!lt-skt~JltiQDL. 

12 DHS FY 2012 BudgetJustlflcatioIl, 940, a\'al1able at hLLp:/iv;\\-\\'.dhs.g(w/xlibmn,:/assetsldhs-com.,Jressionalbudg~tjusli!igltj91l-fJ20_U-1'cif 

II 
96 

individual "fails or refuses to make all reasonable efforts to comply with the removal order" or if 

a court orders a stay of removal in the individual's case. Thus individuals who win a stay and 

may never be deported, and those who are unable to satisfy DRS that they have made efforts to 

comply with the removal order-including those who cannot be deported because their country 

lacks a repatriation agreement with the United States-could be held indefinitely. 

The law governing the detention of people who cannot be repatriated to another countl); 

derives from the Supreme Court's rulings in Zadvydas v. Davis and C{ark v. Martinez. 3 

Zadvydas rests on a principle fundamental to our Nation's jurisprudence: "In our society liberty 

is the nonn," and detention without trial "is the carefully limited exception.,,44 As a result, 

Zad"ydas recognized that "[aJ statute pennitting indefinite detention of an alien would raise a 

serious constitutional problem."45 To avoid resolving that problem, Zadl'ydns interpreted the 

immigration detention statutes to authorize detention for a "presumptively reasonable" six month 

period of time, during which DRS may detain immigrants while attempting to deport them46 

The Supreme Court's analysis in Zadvydas focused heavily on the purpose of 

immigration detention, which is to facilitate an individual's removal from the United States, 110/ 

to permit general preventive detention on public safety grounds. Our system of justice already 

has two different legal regimes in place to deal with the general protection of public safety. The 

criminal system incarcerates roughly 1.6 million on any given day,47 including thousands of noncitizens. In addition, a parallel civil system allows the detention of people who are mentally ill 

and dangerous, including sex offenders, even after their criminal sentences are over. Because it is 

fundamental to our system of justice that "preventive detention based on dangerousness [must 

beJlimited to specially dangerous individuals and subject to strong procedural protections," the 

Supreme Court has made clear that the immigration detention system, with its broad mandate 

and limited procedural protections, is not a general preventive detention regime 48 

This Act contemplates the creation of a vast new preventive detention system that would 

constitute a grave breach of our constitutional obligations, and would also represent a 

tremendous waste of taxpayer resources, while doing little to make us safer. 

V. H.R. 2278 significantly increases existing penalties for violations of immigration 

laws and creates new mandatory minimum sentences 

HR. 2278 contains a host of provisions that significantly increase existing penalties and 

adds new mandatory minimum sentences for violations of immigration laws, including illegal 

entry for individuals with criminal convictions. For example, under provisions in the Act, 

• If a person has been convicted of 3 or more misdemeanors occurring on different dates, 

he may be fined and imprisoned for up to 10 years; 

43 Zadvvdas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371. 378 (2005) 

11 United States v. /S'alerno, 481 U.S. 739, 755 (1978). 

45 7.advvda.\·_ 55J U_S at 690 

1(, Lad'vY'das." 533 U.S. at 701. 

47 Sec Bureau of Justice Statistics, "Total COlTcctional Population" (year end 2011), availahle af 

http://v'r''w\\.bjs.gov/conLellt/pLlb/pressipl1pr.cfm. 

<-IS Zachydas, 533 U.S. at 691. 

12 
97 

• If a person has been convicted of a felony and sentenced to more than 30 months, he shall 

be fined and imprisoned for a minimum of two years and a maximum of 15 years; 

If a person has been convicted of a felony and sentenced to more than 60 months, he shall 

be fined and imprisoned for a minimum of 4 years and a maximum of 20 years. 

Federal courts are already overwhelmed with staggering immigration caseloads that are 

costly, deplete the criminal justice system, and divert resources from prosecution of more serious 

crimes. The Federal Bureau of Prison is operating at almost 40% over capacity and currently is 

the second largest budget line in the Department of Justice. In addition, immigration 

prosecutions from 2000-2010 for illegal entry rose tenfold from 3,900 to 43,700. Currently, 

immigration offenses account for 1 in 8 federal prisoners (11.9%, or 22,986). In 1990, 

immigration offenses accounted for only .8% of federal prisoners and in 2000 for 8.8%.In its 

October 20 II report on mandatory minimum sentences, the U. S. Sentencing Commission 

(USSC) recognized that mandatory minimum sentences as well as the increase in immigration 

cases have contributed to BOP overcrowding. The USSC report also concluded that a strong and 

effective guideline system best serves the purposes of sentencing established by the Sentencing 

Reform Act of 1984 and recommends reform to mandatory sentencing. Mandatory minimum 

sentences defeat the purposes of sentencing by taking discretion away from judges and giving it 

to prosecutors who use the threat of these punishments to frustrate defendants asserting their 

constitutional rights. 

The current laws provide more than adequate criminal and civil punishment for illegal 

entry offenses, which are already among the most frequently prosecuted federal crimes. By 

increasing these penalties, H.R 2278 will further strain the federal court system, contributing to 

the alarming trend of over-criminalization of immigration enforcement. 

VI. Conclusion 

The ACLU opposes HR 2278, which would wastefully and irrationally expand 

unnecessary immigration enforcement at the expense of civil rights and civil liberties. We urge 

the Judiciary Committee to reject this wasteful and unnecessary bill, and instead consider 

legislation that provides a comprehensive approach to immigration enforcement, including a path 

to citizenship and refonns to existing detention and enforcement practices. 

13 
98 

FOR IM).lEDIATE RElEASE 

Thut1<day. June 13. 2U IJ 

CONTACfS 

Clc<>rg" T....,,,,,,,,, Il.>lic Woods 

~~~

202_5fl7_7f>.1Y 202_5{l 7_7f11~ 

~ 

AI LA Urges HOlisr Committee 10 I\ lo\'t' Away fro m InelTecli" r "EnfoTCrmenl-Only" 

ImmigrJtion Lrgishtlion 

WAS IIINGTQ,'I/, DC - The American Immigralion I..aw~ ~ Anocialiun (AlLA) urgt'S Ihe Ho.ne 

Judic;~'Y Con,mince to move away f,olll illclTl'Cci ve "cnforcelllcnt-unly" ,mmigration .cfQlm and 

ins.eadjoin Ihe $en&le in co!)sidering bipartisan common-sense lesi&ialion The bilil>eing di'ICu,scd al 

looay's hcarinJl,. the "Strenglhen and Fortify Enforcemenl AC!" ()( SAFE Act will nOl f,~ OI.Irhroken 

;mmigJ'll lioo sy~em 

h! am disheartenl"d by Ihis bili and Ihallhe Commiue<: has taken il up II comple1dy oo.i~sn the ",ark 0\1 

the kind of rtf om. Ollr COlInII)' ne;:d5 ill order 10 build a 2 1 Sl cemu'}' immiSIlliion system Ihal benef,ts uS 

all ~ said AllA President laura Lichter She COIllillucd. " AI a tinle when Ihe fedc.aJ government and 

Am"riCil1l famifi".. ar~ lighlening their pIIrK Slringg, Ihi, bili drarn arically crcase~ in .pendinij QII wh~1 

is a lready oor mOSI expensi~eenrOl1:cment and dele",io" apparatus, with no cvid~'1'cc Ihal il will &OIl'e 

any problems caused by our dysfunctional 5yslell1 

MThis f<!CIs lik~ dfji. W III ovet t!!.1in The SAFE ACl duesll't bother with any new !lOIu(iO\1s bUI inslead 

tries to rcsu,,·ect an C~f~(I1\C nl-o lll y slruleID' lhal was sponSO!l.'d "cady a do:cade ago by Il.epresclllalive 

Sensef1brcnller, I~ R 4437 In ,h" ye~ sillce th~Tl , 0\.1' ijovemnll,m hI., 5JIcm an unp",cedenled 3 111OUll1 

OIl border security I nd enforcCn10111, l1\eeliTl~ b~nchmaf~ If\erb~nchmark BUI evl'fl those SuCGesse i 

haven't tixed (Illr broken syslem because border security is ooly one pi«e of the ;",mig11ltiOll tquat;,101 

If ~nything. Ihe failurc of enforcell1ent ",li y strategies just pOint; <lUI Ihe n«d f(ll' a balanced l>Verhaul, 

li~e what we see in theSenate bill, 

" Instead ofreluming!O these discredited $1ralegie., oor country needs Sman O11fO«:cTIlenl Criminalizing 

u~docu men ed immigrants w.l l nol ma~e uS safer. Whal worb is bringing the undocumented 001 of the 

shadows 10 regiMertnd slart what is shaping up 10 he ~ grueling road to ciri~011sl1ip 1m our t"nns, 

Enf\'JfCemen1 should fo,;u~ un those who p(>SC an aClual danger 10 publi c !.3fety or national security, We 

urge Ihe /l UllS( 10 instead 1\1000C toward I SlrO!lg bipartisan appllJac~ similartu S 744, ooe tb ~( will 

cs:rablis/1 tough standards, protect 00' IIation, and prO"ide K patll 001 of lhe shadows fiJI" O\hen;, ~ she 

cOncluded 
99 

The American immigration Lauyers Association is the national assocIation o.(immigration law. vcrs established to 

promote justice. advocate for fair and reasonable immigration law and policy. advance the quality of immigration 

and naOonality Imv and practlce, and enhance the professional development ~fils members. 
100 

Statement of Jnlie Stewart, President, Families Against Mandatory Minimnms 

Snbmitted to the U.S. Honse Committee on the Jndiciary 

Regarding H.R. 2278, The Strengthen and Fortify Enhancement Act 

Jnne 13,2013 

Chairman Goodlatte, Ranking Member Conyers, and members of the Committee, on behalf of 

the staff, board, and over 25,000 members of Families Against Mandatory Minimums (FAMM), 

I appreciate the opportunity to submit our views on H.R. 2278, The Strengthen and Fortify 

Enhancement Act (SAFE Act). 

We believe that this proposal is a well-intentioned effort to secure US. borders and address 

illegal immigration. As our name implies, FAMM is concerned, however, with the sentencing 

aspects of the SAFE Act. We strongly oppose the bill's provisions creating new mandatory 

minimum prison sentences and expanding existing ones. The proposed mandatory minimum 

sentences will put an unsustainable and cost-prohibitive burden on our already dangerously 

overcrowded federal prison system. We also believe that the proposed mandatory minimum 

sentences will make taxpayers pay an enormous price to incarcerate many people who could 

instead be deported to their countries of origin in a fair and expeditious manner. Finally, 

mandatory minimum prison sentences can produce grave injustices because they bar courts from 

titting the sentence to the crime and the offender. Even in immigration-related offenses, it is 

impossible to foresee the unique circumstances of every case and what the appropriate 

punishment should be for each defendant. 

The SAFE Act creates and in some cases expands mandatory minimum sentences for the 

following offenses: 

).. Aggravated ID theft (Sec. 312): Expands the coverage of the current 2- and 5-year 

consecutive mandatory minimums to apply whenever a person uses a means of 

identitication "that is not his or her own" in the course of committing certain felonies, 

even if the identitication does not actually belong to another person (e.g., using a 

made-up Social Security number); 

;- Alien smuggling (Sec. 314): Creates new 3-,5-,7-, and lO-year mandatory minimum 

sentences for people who assist others who are entering the U.S. illegally. Which 

mandatory sentence applies depends on the person's profit motive, whether serious 

bodily injury or death are likely or result from the violation, and if the alien who is 

assisted commits other crimes; 

).. Possession of a gun during an alien smuggling crime (Sec. 314): Creates consecutive 

5-, 7-, or lO-year mandatory minimum sentences for possessing, brandishing, or 

discharging a tireann in the course of an "alien smuggling crime"; 

, lllegal reentry (Sec. 316): Adds 2-, 4-, and I O-year mandatory minimum sentences for 

aliens who illegally reenter the U.S. and have prior convictions for various offenses. 
101 

Expanding and creating new mandatory minimum sentences for immigration-related offenses 

would only aggravate the Bureau of Prison's (BOP) and Department of Justice's (DOrs) 

signiticant overcrowding and budget problems. Even before the sequester began, the BOP was 

under severe budget strain. A January 22, 2013, report from the Congressional Research Service 

(CRS) provides a useful summary of the extent and causes of the problems. 1 The number of 

inmates under the BOP'sjurisdiction has increased trom approximately 25,000 in FY1980 to 

nearly 219,000 in FY20122 The BOP is currently overcrowded, operating at 38 percent over its 

rated capacity3 The Inspector General for the Department of Justice recently testified that the 

outlook "is bleak: the BOP projects system-wide crowding to exceed 45 percent over rated 

capacity through 2018.,,4 Between FY2000 and FY2012, the annual per capita cost of 

incarceration for all inmates increased from $21,603 to $29,027. 5 Over this same period, 

appropriations for the BOP increased from $3.668 billion to $6.641 billion6 

The BOP now consumes a full quarter of the DOJ' s crime-fighting budget. 7 This endangers the 

public, inmates, and prison staff. The current inmate-to-staff ratio in the BOP is five-to-one,8 and 

BOP Director Charles Samuels recentl y stated that overcrowding in federal prisons leads to 

greater risk of harm to inmates and staff alike. 9 Inspector General Horowitz recently described 

prison overcrowding as the DOJ's "material weakness" 10 and explained the public safety 

ramitications of continued prison population and budget growth to the House Crime, Justice, and 

Science Appropriations Subcommittee: 

The federal prison system is consuming an ever-larger portion of the 

Department's budget, making safe and secure incarceration increasingly difficult 

to provide, and threatening to force significant budgetary and programmatic cuts 

to other DOJ components in the near future. Whatever approach the 

1 COH'RHSSIONAL RESEARCH SERVICE, THE FEDERAL PRlSON POPl LATION BUILDUP: OVERY lEW, POLlCY CHA'JOES, 

Issu:s, AND OPTIO'lS 8 (Jail 22, 20lJ) [hereinafter CRS Report], ami/able at 

http://www.fas.orglsgp/crs/miscIR42937.pdf. 

, CRS Report, at 1. 

3 Testimony of Charles E. Samuels, Jr.. Director of the Federal Bureau of Prisons, before the U.S. House of 

Representatives Conunittee on Appropriations, Subcommittee on Conunerce, Justice, Science, and Related Agencies 

concerning Fedeml Bureau of Prisons FY 2014 Budget Request 4 (April 17,2013) [hereinafter Samuels Statement], 

amilahle at http://appropriations.hollsc.gov/uploadcdfilcs/hhrg-113-ap I 9-wstatc-samuelse-201 3041 7.pdr 

(describing a capacity or 129.000 and a prison population or 176,000, which results in a capacity at 136%, and 

describing hm\' mediulll security prisons operate at 44% above capacity and high security prisons operate at 5.+% 

above capacity), 

, Statement of Michael E. Horowitz, Inspector General, U.S. Department of Justice. Before the U.S. House of 

Representatives Committee on Appropriations, Subcommittee on Commerce, Justice and Related Agencies, 9 

(March 14, 20lJ) [hereinafter Horowitz Statement]. available at http://appropriations.house.gov/uploadedfiles/hhrgJ 13-apJ 9-wstate-horowitzm-20 1303 J 4.pdf. 

5 CRS Report, "t 15. ,~ CRS Report, at Summary. 

C Horowitz Statement at 8. 

8 Hormvit7. SWtcmcnt, at 9. 

, Samuels Statement. at 4-5 ("lIJnereascs in both the inmate-to-starr ratio and the rate or crowding at an institution 

(the number of inmates relative to the institution's rated capacity) arc related to increases in the rate of serious 

inmate assaults. An increase of one in 8n institution's imllate-to-clistody-sla1Tmtio increases the prison's anllual 

serious assault rate by approximately -t.5 per 5,000 inmates,"). 

10 Horowitz Statement. at 8. 

2 
102 

Department wishes to take to address the growing cost of the federal prison 

system, it is clear that something must be done. In an era where the Department's 

overall budget is likely to remain flat or decline, it is readily apparent from these 

figures that the Department cannot solve this chal1enge by spending more money 

to operate more federal prisons IInless it is prepared to make drastic Cllts to other 

important areas of the Department's operations. 11 

Simply put, the more the DO.Jspend5 on prisons, the less it can spend on fighting crime. 

The CRS report puts the blame for this prison overcrowding and budget crisis squarely on four 

factors: 

1) Increased numbers of federal offenses subject to mandatory minimum sentences; 

2) The growth in mandatory minimums has led to increases in sentence ranges - and, 

therefore, sentence lengths - under the federal sentencing guidelines; 

3) More crimes have been made into federal offenses; and 

4) The elimination of parole. 

F AMM has advocated for the elimination of mandatory minimum sentencing laws for more than 

20 years. These laws do not allow the type of individualized consideration of facts that every 

offender expects and deserves. Mandatory minimum sentences also drive the unsustainable 

growth in federal corrections costs. CRS explains the problem: 

Mandatory minimum penalties have contributed to federal prison population growth 

because they have increased in number, have been applied to more offenses, required 

longer terms of imprisonment, and are used more frequently than they were 20 years ago . 

. Not only has there been an increase in the number of federal offenses that carry a 

mandatory minimum penalty, but offenders who are convicted of offenses with 

mandatory minimums are being sent to prison for longer periods. For example, the [U.S. 

Sentencing Commission or] USSC found that, compared to FY1990 (43.6%), a larger 

proportion of defendants convicted of offenses that carried a mandatory minimum 

penalty in FY20 10 (55.5%) were convicted of offenses that carried a mandatory 

minimum penalty offive years or more. While only offenders convicted for an offense 

carrying a mandatory minimum penalty are subject to those penalties, mandatory 

minimum penalties have, in effect, increased sentences for other offenders The USSC 

has incorporated many mandatory minimum penalties into the sentencing guidelines, 

which means that penalties for other offense categories under the b'llidelines had to 

increase in order to keep a sense of proportionality. 12 

This one-size-fits-all approach to justice results in many offenders spending much more time in 

prison than is necessary to protect public safety. In 2010, fully 75,579 (39%) of the 191,757 

offenders in BOP custody as of September 30,2010, were subject to a mandatory minimum 

penalty at sentencing. The Sentencing Commission reported that in 2010 the average sentence 

11 Horowitz Statement. at 8. 9 (emphasis added). 

12 CRS Report. at 8. 
103 

for prisoners serving mandatory minimums was 139 months, while the average for all prisoners 

was 48 months. 13 

The SAFE Act's proposed mandatory minimums are especially nonsensical. Under current law, 

non-citizens that are in the United States illegally and convicted of federal crimes are sentenced 

by a federal judge, serve their sentences in the BOP, and then are transferred to hnmigration and 

Customs Enforcement (ICE) for removal from the country. In these cases, shorter federal prison 

sentences would save the BOP and DO] money without jeopardizing public safety because 

dangerous, non-citizen felons are detained by TCE until they are removed. The mandatory 

minimum terms established by this bill would simply b'llarantee that noncitizen offenders spend 

even more time in BOP facilities, thereby stretching limited DOJ resources - money and prison 

space - even further. Thus, while imposing any new federal mandatory minimums would be a 

mistake, in our view, these particular mandatory minimums make the least sense l!fall. 

Immigration offenders are already the largest category of offenders sentenced in federal courts, 

comprising 32.2 percent of all cases. 14 In 2012 alone, more than 26,000 people were sentenced 

for immigration offenses, and their average sentence was 16 months in prison. IS More than 94 

percent of these offenders were non-citizens. 16 It costs approximately $29,000 to incarcerate one 

non-citizen otTender for one year in federal prison. 17 Tn 2012 alone, TCE removed a record 

409,849 people from the United States, of which 86,405 were repeat immigration law violators 

and 225,390 were convicted criminal aliens. 18 Giving even a fraction of these people the 2-,3-, 

4-, 5-, 7-, and 1 O-year mandatory minimum sentences created in the SAFE Act could exacerbate 

the budget crises that the BOP and DOJ already face and cost taxpayers a fortune. 

The Inspecror General has offered a bleakforecast for DO.! budget growth, and this Committee 

should heed it. We cannot build our way out of our current prison overcrowding crisis, nor can 

we fund the prison explosion that would result from the passage of the SAFE Act with its current 

mandatory minimum proposals. All taxpayers should dread the increased prison costs and DO] 

budget cuts that might result if we opt to give longer prison tenns to more immigration law 

violators each year instead offunding crime-fighting initiatives. 

To the best of our knowledge, neither Representative Gowdy nor any of the bill's cosponsors has 

set forth evidence that the proposed mandatory minimum sentences are necessary to punish these 

offenders sufficiently, or that the threat of mandatory, longer prison sentences would deter the 

people most likely to break these laws. We appreciate the constitutional role that Congress plays 

11 u.s. SE:-.JTE:-.JCI:-.JO COkUvl 'N. REPORT TO CONGRESS: MA.NDATORY 1vfI:-.JllvlUvl PENALTIES l:-.J THE FEDERAL 

CRlMlNALll STICE SYSTEM 136 (Oct. 2011). available at 

http://www.ussc.gov/Legislative_3nd]ublie_Affairs/Congressional_TestimonLand_ReportslMandatory_Minimu 

m Penaities1201l1031 RtC Mandatory Mininullll.cfm. 

14U.S. SE'lT)'.'!CNG Cru,rM'N. 2012 Soi :Rcr.nOOK 0)' Frnr.RA1. SE'lT)'.'!CNG STA TlSTlCS Figure A (2012) 

[hereinafter 2012 SOl.'RCEDOOKj. available at 

http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and _ Sourcebooks120 12lFigureA. pdf. 

15 2012 SOllRCEBOOK. Table 13. availahle at 

http://www.llssc.gov/Data_and_Statistics/Amllml_Reports _and _ SOllrcebooks/20 12/Table 13 .pdf. 

16 2012 SOllRCEBOOI':. Table 48. availahle al 

ilttp://wwW.llSSc.gov/Data_and_Statistics/Allnual_Reports_ and _ Sourcebooks/20 12/Table4S.pdf. 

"78 FR 16711 (2012). 

lS Immigration and Customs Enforcement, Removal Statistics. at http://w\vvil.ice.gov/removal-statistics/. 

4 
104 

in immigration enforcement, but we think members of Congress have an obligation to engage in 

careful study before proposing or adopting new mandatory sentencing policies. 

With regard to the SAFE Act, we think the public should know the following in relation to the 

proposed new mandatory minimums: 

).- Why were these specific prison terms chosen for the offenses? What factors did 

Representative Gowdy consider and deem relevant in making these choices? 

, What is the average sentence currently imposed for these ofrenses~ 

).- What is the recidivism rate for individuals who commit these offenses? 

).- What impact will the new and expanded mandatory minimum sentences have on the 

federal prison population and budgee How will Congress and the DOJ pay for this? 

, Is there evidence to suggest that courts are failing to punish these crimes appropriately~ If 

so, what is it? 

, How does the cost of removing an immigration law violator compare with the cost of 

incarcerating one? 

Thank you for the opportunity to share our views with the committee. 

5 
105 

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13 June 201) 

11", HOIIOIWle BQb Goodl.nc 

Ch8irm&n of .he Ho",e C"m",inee 011 .he JudiciaJ}' 

Th. ll()llOf'!lbl e Juhn C""y .... 

RaJ1kinl! Member of(/1e Iloo$<! C",,,",iUtt.,II the JudiciaJ}' 

The H<>IIOI'ablcTrey Gowdy 

Ch.irman oflhc Subcoonmin .. 011 Imm'gral''''' and Border s.:curi,y 

Tlw HOllOOlblt Zot Lofll'et1 

Rankin!:! Member ofth. S"boommine-e un Immigration and Iklrdcr Sctl,ri.y 

21.8 Roybum H ...... Oflice Buildin!! 

Wasltinl\ll>ll. DC20S1S 

~: O"lH>tllioll'o IIR 1278, rho lr lh." nd .'or.,fy f:nfor. om.". Arl" 

( I'ho 5.\."[ Acl ' 

ON, Chai",'an GQodlln<, Rankins M~mb ... Cony~",. Chairman QQ"dy and Rankin!! 

Memb~( Lor!!,,,,, 

Since 1m. Ihe C""lition fllf Humane Immiwanl RiWn . of Los ""!!tIts ICHIRLA) hBS 

wooed dilise'lIly III !>d"ancelhe hurnan Ind civil ri!llns ofimmiJ!tllllI5 and refugees in Los 

Ang<in. pmm"'c h8ll11oni"", nrulti·<1III1ic and mulii·no.cial human ",I3Iions. and throo!!h 

coalition-buildin!!. advoca~y. cornmUnil}' eduealion and OI'!!""i,jng. emptlwer immigrants 

IIl1d Ih~r allies 10 build. mOfejus' _;e1Y An .. :wnllal pan oflhi. effon has \>..eo 10 play 

ou, pari in enMlring " collaborative and open relation,hip Mt"ecn Ihe irnrnigram 

communities we """'e and 1"",,1 law enforccmenl meanl 10 pro!ec1 Ihem. We wrile 10 

.~P'ns our $MQI.IS conc"m (hal HR 2278 would inevo.:abJy and oegalivdy imp~1 Ihis 

,datiooship, 

In 1979 "ith the implememati"" of Special Order 40, Los Angdes became one or Ihe 

ii, .. juris<.lic.ion. in the Uniled SI.les 10 urr,cially rerogni,. that effective crime prevention 

and rt$oIuuon lequires thO' coop<1ll!ion of .11 comnmnily mrunl>eto. r""rdl"SlI or 

in,m;gration <.atus' In the years thai foH()\\e\l immigl1lnlS began 10 IIlaC<l gr ... , ... nus, i" 

police. bUI Ihis li aIson is • 0011>18"1 "'Of~ in progr"1oS Iha, requires nunuring a, al l lum~ 

PoIl""ing th~ POlice brutality on di,ploy during the May Day no.lly In 2007, \\~ wor~,,(J 

wllh then Chief Brall()f1 Qrtht u,,; "ngelO,$ PoIlC<l J)ep.artmem (LAI'O) 10 bq9n a process 

ofhelthng S'multaOi.'OO>l y, CHIRLA and lis alli_s SfXlf;C "I' a~n~' any form.1 Igr.enwnl 

bel"C<ln the LAI'O and Jmmil!"~l;un and CustOln5 Enrorcemenl nCE). Wh~n Los An&cles 

Shc .. ilTLet Baca d.<ided to puI"WC such a cou""" in ..,.,king I 287(11) .!'.rc"'m~nt "ith ICE, 

"" .ucc.,..fully wmed 10 miti'"'te the im]>Kl And "hen ICE imposed the nSecure 

Co,"mu"ili",,~ (S·Cornm) d~'t1 on 1)11' community. we , .... ",,(J and e".'",uuaJly 
106 

~04winced b<JIh LAPD Chief Ike); ""d 'he Sho:rirr '<'> limil its sc",," A~ we ... p w.,ch 0\'''' 'his do:lic.,,, 

bolartOe, we eannOl help but obsen'>! Ih.t HR 2278 ri,ks lipPl1\!l il in the "roIlg dire<:!ion, 

AnI,,"g ~\~ many troubling ptO'oisiOlls oflhis bilt. p<'rhaj)$ (h~ must Ila,mingi.the iostil u~""",li:wi on of 

• role f<ll" local police in immigilltion rn!i'lfcemtnf, With ooly a Irainio~ manual" and • "p<)Cke\ suide" a, 

h~nd, • ba, officer will be ba.ically be dC1"',i • .ed '0 olso perfo,"' ,he CQ/llplc~ d",i.s of. r.derlll agent 

MDrOO'.'cr. and II Wea, ""pem,., Ie the till I"yer. 'he fedefllt IImtmm"", will be ""'''pelled Ie pr<>Vidc an) 

add i,;onal, dtoire<! mtining IS wdl Ie [0 del.io inuuigr.rnB wl>O "'" ~nesled .s • ,,..uh of Ihi. dra,,;c ""d 

danll"ruus do:l~[ioo offederlll power f "nhtr, and of great C<Jrlcern '0 ci'it$ in the Los Anile/e. and Bay Aru 

of Californi., is !he S«Iion lhal '<'<luirt$ the j""«ttl 1'O,'emntenl 10 poJnish 1",,"li,;es !ha' Ch~ a 

con"i,utionBlly prolec,ed pil!h to d"'eI1l1ioe how Nos, 10 enSlUt if' owo pYblic oafety These. provision. re 

con'p<l'Jnd<:<l by Ihe ",,~i,il)ncd e .• p.n<ioo of so-called ",'III"olory depan"""," for in)miSTOn ls who ,h~o wind 

up in ICE cu.'00}1 l'hls "'oolh, CIIIIU,.A bo.'CiIm~ a pla;~lilT '" lin Amerioan Civll Lit>CniC$ Unloo (If San 

Oi,,!!o ~n.d lmP\'rial Coonlid I.w.<;<,,\ . " ICE in order to M'\'~ ~Iitf du~ 10 Oolrconli nual n6ed l() rtj;pOlld 10 Ih~ 

olready prev.l~nl C<lI:fcion behind m,"y ",'oIumal)l d.partur ... ·" 

D':lI"'llUio,,. uf im,niJ;lIll11" m.ny via !he 1lI .... dy b""d ;nll:';". e-nforr~'nc,,, nc, ore ai " " 'curd 

hi!!h. and .... 'HIIII ramilit$ are Ming I"", "po"- \I.'ilh QUI" law .. ,r"""""en! pann" .. , we ",uS! WIlt" to ''''' ... '''' 

this u·."d, 6P""i.II~· ... We nt!We ,oword ,ruly, """'pf1!l1t.,,i.t immig,,"il)l1 ,.rono Thi$ bin. ~III. 2278, ,';11 

mike ~ •• t the opposi!e t"fftct It neither m~kes IltIr tQmlltuniu .. oafe, wr does il 1:001';1><""10 ,he ""ffal l 

soIulion "'" '" desperately need F<lI" Ih.,... .... jQOl and mort. we ..... ~fuUy ur~ YOtllO rejoct il 

If you Ital'e an¥ quHtioos. pkase COOI;t.C1 Rita Medina .1 rmoolua@s:bjdai>rll or JDSC'ph Villel •• 1 

b:illi11r,) !:bill. Q! ~ 

Sincl:le1y, 

Angelic ... SIll".. E~e<u[iv. 0;'e<10I 

CHIRLA 

's.. "Locallo" 1::'''''''0<1", .. . n! !""",,"WI ~ ... ONe, 01<) , ¢ctoto<, llJolII. CIlI l~ 

h!!p IIr,buy DlyJhlC!lfa;'."'t ...... "<iSv!<"Ib.~ II 11' ,,,,pdf • s.., "Act.trClus ""'"'"u"'""" a..llcn.!'" 1","'>:""1"" Enf""""", .. ...,..,,, .... ' P"",uceoot'T""",,, f .. m~ .. A"",, ~ I,." 

./tl( ;, 

b!lo /l l\ n ICJ~ .... "'1f .. """""'[l!('5i'adu.,; jt!H<!P .. " .. ""kSlWkllll<tullDR .. ah!llH'lkfoJS<'nnI .... g;,.....,. .. ti<cwC. 

1 .. ['IUI·f""'b ...... DOI1I 
107 

NATIONAL 

IMMIGRANT 

JUSTICE CENTER 

A IIEARTt.AHO AUlAHCf ~ 

Statement of Mary Meg McCarthy, Executive Director 

Submitteo to the House Judiciary Committee 

Hearing on H.R. 2278. the 'Sttengtheo aM fortify Enforcement Act" (The SAFE Act) 

June 13. 2013 

Chairman Goodlane. Ranking Member Conyers, <lnd members of the Committee: Than'" you 

for the opportunity to submit this statement fOf the record. Since ~ founding nearly 30 

years ago, Heartland Alliance's NEillanal Immigrant Justice Center (NIJC), II Chicago-based 

nOI'\ -go~ernmen!al organization. has been dedicated to safeguarding the rig/lts of noncitilens. Each )'ear. NIJC and its unparalleled network of 1,000 pro oono attorneys pro ld e 

legal counsel arid representatiorl to nearly 10,000 inaividuals. NIJC also promotes 8CilesS to 

justl<:e IOf Impoverished Imml&ran{S, relugees. and asylum seekers through Impact litigation, 

policy reform. and public education. 

On behalf of NtlC, ! urge you to consider an Immigration reform bill similar to 5,744, which 

creates a patn to citizenship for the undocumented individuals in the United States. 

contemplates smart enforcement, and reforms the legal immigration system to address our 

country's future needs. 5.744 offers common sense, bipartisan principles lor a new and 

effective immigration syst~m. 

In contrast. H.R. 2278 Is a significant leap backwardS. The SAFE Act takes II mlsgultled 

enforcement-only approach. A.s our testimony will convey. the best way to enforce 

Immigration laws ts to first create a system that worlis. For many noncitizenS, there is simplY 

no "line" to get into jf they want to come to the United States ~gally. This kind 01 system is 

not viable. yet H.R. 2278 does nothing to address the root of our Immigration problems. 

Instead: 

The SAFE Act makes virtually every police officer an immigration official. leaving room 

for racial profiling and undermining local policing efforts. 

Immigration law as It stands Is Incredibty complex. and local police are not In the best 

position to determine whether an IndiVidual is here unlawfully or may be removed. This 

responsibility falls on the Oepartment of Homeland Security (OHS) alone and cannot be 

alleviated by a pocket guide to immigration law as this bill proposes. 

The bill would place the prinCipal holdlngs in Arizona II. Unlled Slales In serious doubt and 

reignite - even encourage - new roUndS of state-level Immigration laws_ It allows local 

aClors to "Investigate, identify. apprehend, arrest. detain. or trallsfer to lederal custody" 

Individuals, Which opens V1e door for enforcement based solely on "suspected" immigration 

violations. In many parts of V1ls country. we have seen this in actIon and it amounts to 

pervasive racial prolliing. This may also bflng Into question the Fourth Amendment's 

requisite probable cause. 

Immigration detalners have also becOme an Imponant immigration enforoement tool for the 

Obama admInistration, aHowing DHS to vastly Increase lIeportatlons while passing tM costs 
108 

National Immigrant Justice Center 

Testimony on H.R. 2278, The SAFE Act 

on to local law enforcement. This bill contemplates the expansion of this kind of system, 

allowing detention of an individual for 14 days after his criminal sentence is complete for 

DHS to assume custody. Yet the financial costs and public safety considerations are just two 

reasons why state and local government in immigration enforcement is not in the best 

interest of these local partners. Local partners are not necessarily compensated for the 

prolonged detention of individuals, and in this bill we are asking local police to focus on 

immigration violations instead of criminal activity in their communities. As a consequence, 

this kind of system would discourage individuals from reporting crime if they are 

undocumented - a situation that does nothing to benefit the community. 

The SAFE Act severely hinders DHS's ability to place eligible non-citizens in secure 

alternatives to detention, wasting taxpayers' dollars and ignoring law enforcement 

best practices. 

The bill requires DHS to take every person referred by local law enforcement into custody and 

calls for the expansion of immigration detention facilities. This eliminates all DHS discretion 

to concentrate its resources on priority cases. It also wastes taxpayers' dollars to detain 

every single person in removal proceedings, without consideration of public safety or flight 

risk. The purpose of immigration detention is to ensure that people appear at their 

immigration court proceedings. Criminal justice systems across the country routinely and 

increasingly recognize that confinement in the pretrial context is costly to taxpayers and 

unnecessary to mitigating flight risk and the danger to our communities. Many states -

including Texas, Georgia, and South Carolina - have passed laws that shift low-level offenders 

out of prison and into cost-effective and secure alternative programs. 

Our immigration detention system should follow suit and conform to established best 

practices. Immigration detention costs taxpayers over $2 billion annually; approximately 

$5.5 million every day. On average, detention costs approximately $164 per individual per 

day. Many alternatives to detention (ATD) exist that have proven effective at getting people 

to appear at their removal proceedings and save a great deal of taxpayer money. ATDs cost 

between 30 cents and $14 per person per day, and create no risk to public safety. ICE's 

current ATD contractor reported that 96 percent of individuals enrolled in their programs 

showed up fortheirfinal hearing in 2011. 

Doris (pseudonym) was repeatedly raped by her stepfather when she was a young 

teenager. She eventually worked up the courage to report him and he was convicted of 

abusing her. Doris, now in her 20s, has two misdemeanor convictions. One is for 

shoplifting when she was 18, something she regrets and is ashamed of now. The other 

conviction was related to a domestic violence incident in which she was being attacked 

by her boyfriend and scratched his face in self-defense. When the police came she was 

very upset and was unable to adequately explain the situation. Her public defender 

advised her to plead guilty to domestic battery. Because of these convictions for crimes 

involving moral turpitude, Doris was considered to be mandatory custody and ICE 

refused to release her despite the fact that her U visa adjudication dragged on for many 

months. Doris found many of her trauma related symptoms growing worse throughout 

the time she was detained· she gained weight, began having nightmares, and could not 

speak to her attorneys without crying. Her abusive stepfather had often tried to confine 

her to one room, so the experience of being confined re-traumatized her. Yet ICE 

steadfastly refused to release her and she remained in custody for the ten months it took 

for her U visa to be granted, at which time she was released. 

2 
109 

National Immigrant Justice Center 

Testimony on H.R. 2278, The SAFE Act 

ATDs have been endorsed as cost-saving from a variety of organizations, including the 

Council on Foreign Relations' Independent Task Force on U.S. Immigration Policy, the 

Heritage Foundation, the Pretrial Justice Institute, the Texas Public Policy Foundation (home 

to Right on Crime), and the International Association of Chiefs of Police, and the National 

Conference of Chief Justices. 

Moreover, American communities and the U.S. taxpayer suffer when we needlessly tear 

families apart and detain caretakers and breadwinners. When a parent or spouse is 

separated from their family, it often comes at a loss to the local economy and can result in 

U.S. citizen family members relying on public benefits or children entering the state foster 

care system. We must take steps to prevent these unnecessary costs to our taxpayers and 

communities. 

The SAFE Act imposes penalties that are even harsher than the criminal justice 

system. 

Congress has long recognized that LPRs have special rights and protections in the United 

States. For these reasons, LPRs are subject to unique grounds of removal and - where such 

grounds are triggered - to unique forms of relief from removal that reflect their strong ties 

and contributions to the United States. Before 1996, Congress permitted LPRs with certain 

types of prior convictions to seek a waiver of removal if they met stringent residency 

requirements and they did not necessitate prolonged punishment by sentencing courts. The 

1996 curtailment of this form of relief has resulted in the disproportionately harsh 

consequence of removal for thousands of long-time LPRs, permanently fragmenting 

immediate families and destabilizing communities. 

Time has demonstrated that the 1996 changes have led to unnecessarily harsh 

consequences for many families, and the uneven results of litigation have led to unfair 

retroactive consequences for decades-old offenses. Those old rules could be combined with 

new mechanisms, such as a period of testing or "probation," which would better achieve our 

national goals. 

Yet thousands of detained individuals are arriving asylum seekers or long-time lawful 

permanent residents who are being mandatorily detained without review. Others have been 

ordered removed but are mandatorily detained while they appeal those orders and/or 

because the government is unable to physically deport them. For these detainees, who do 

not pose a danger to others and are not flight risks, detention causes undue hardship to 

themselves and their families and is an unnecessary expense to the government. The bill 

categorically prohibits bond hearings for these individuals, even if they are arriving asylum 

seekers and individuals with non-violent criminal offenses. Detention without a bond hearing 

is contrary to basic due process and U.S. human rights commitment and must not be 

condoned. 

Anatoly, (pseudonym) a citizen of the former Soviet Union (now Belarus), was brought to 

the United States as a refugee in 1993 at the age of 4. He became a legal permanent 

resident of the United States the following year. Anatoly has no family in his home 

country, does not speak Russian, and has never returned. Anatoly was placed in 

immigration proceedings and mandatory detention under INA § 236(c) after he was 

convicted of stealing four packs of cigarettes from a Walgreens pharmacy. Anatoly spent 

103 days in ICE detention, at a cost of over $15,000 to taxpayers, until the National 

Immigrant Justice Center secured cancellation of removal for him to remain in the United 

States with his family. 

3 
110 

National Immigrant Justice Center 

Testimony on H.R. 2278, The SAFE Act 

Even more concerning, the bill expressly allows an individual to be detained "without 

limitation" during their removal proceedings, and places the burden of proof on the detained 

individual to show by clear and convincing evidence that he is not a danger or a flight risk. 

The U.S. Supreme Court has expressed doubts about the constitutionality of indefinite 

detention, and has only deemed mandatory immigration detention constitutional when it is 

"brief' and for the purpose of speedy removal. 

Conclusion 

As Americans, we are defined by our values, especially respect for the rule of law and 

equality for all men and women, regardless of what we look like or where we came from. 

This bill shamelessly rejects these American values. It will be virtually impossible to create a 

functional immigration system as long as the government continues to arrest and detain 

record numbers of men and women who pose no threat to society, especially when it denies 

them an opportunity to live in this country with some sort of status. 

Our current laws are badly broken, but disregarding our values is not the solution. This 

Committee has an opportunity to create an immigration system that honors due process 

protections and protects these beliefs for years to come. Any legislative reform must ensure 

due process protections and adopt proportionate punishments for individuals who violate 

immigration law. It must not eviscerate the line between criminal and civil law enforcement 

matters and encourage local law enforcement to enforce federal, civil immigration laws. 

Detention decisions should be based on individualized risk assessments and be made 

consistent with best practices in law enforcement. We live in a country that does not deprive 

individuals of their liberty without the chance for accountability and judicial review, yet it 

happens every day in our immigration system. Particularly when so many individuals go 

through the immigration detention system without ever being able to talk to a lawyer about 

their rights, those who are determined to require detention in order to mitigate flight and 

safety risks should still have the chance to ask a judge to review that decision. 

Common sense reforms to the immigration detention system are greatly needed and are 

supported by the following principles: 1) save taxpayer dollars; 2) follow law enforcement 

best practices; and 3) ensure due process protections. The SAFE Act does not adopt any of 

these principles. We urge this Committee to contemplate legislation 

I thank you for the opportunity to present this testimony on the urgent need to reform 

America's immigration system. Should you have any questions, please feel free to contact 

me at mmccarthy@heartlandalliance.org or at 312.660.1351. 

4 
111 

r-. I"W 

. ) 

NATIONAL 

IMMIGRATION 

FORUM 

Slatement for the Rel."Ord 

House Judiciary Comminec 

"H,R. 2278 , tlu:: StrcnJ,.'1hcn and Fortify Enforccmeut Ad 

[fhc SAFE Act)" 

June 13, 2013 

The NatioumlOlln igra tiUIl Forum works to uphold America"s tradition us a nation of 

immigrants. The Forum advocates for the value of immigrants aud immigration to the 

nation, building support for public policies thllt rCl.lnite families, recognize the 

importance of immigration to ollr eC(lRQmy amI OIJT CQrnmunities, protect refugees. 

encourage newcomers to become n,-"" AnlcricanS and promote equ:li protection under 

th~l1\w. 

'Ole Natio llmrnigra.tion Fomm thanks the CommitH:C for holding this hearing on the 

matter of Amerie~ s broken irumigrntion system and urges the Committee to take up n 

broad immigration reform approach. 

We belie"c this lime ... ill be difTe rem when it comcs to passing immigration refonn. In 

th~ 1),'11;1 two yt!ars, an a!li:!.lICE! of oonsen'lllive faith. law enforcement and business 

leadership hlls come logether 10 forge a nt'W eonsen,;us on immigrant.; and America, 

These relationships formed through outreach in the evangelical community: the 

devt!lopment of Slate compacts; and region:!.l summits in tht! Mountain WeSL, Mid,,-est 

and Southeast. 

In ellt!y DK't!mbef 20t2. over 256 faith, law enforcement and business leaders from 

across the country came to Washington, D.C., for a Nntional Stnltegy Session and 

Ad~1>CIICY 011)'. They told polirymakers and the press about the new consensus on 

immigran ts and America. [n February, to support these efforts, tI,e NatiOMI 

Immigntion Forum l3unched the Bibles, Badgcs and Business for Immigration Refoml 

Nelwnrk to achieve the go.11 of broad immigration refurm. Earlier this wet'k 10 help 

;lch;e\'e that goul, this network held a Policy Breakfast and Advocacy Day when: 

participonts organi zed 83 Hill meetings (55 with Republic.1ns). 

As the Committee d;scusses reforming our immigration system, it is important tha t the 

discussion does not beoome singularly rocuse<! on enforcement. A singular foc'llS on 

;mmigmtion enforcement win not result in "~)rkable oolut;OIlS, alld gh't:S an aprearance 

of an Illtempt to prt')-' opon ooth our Icg;limilte ooncems lind prejudices in order to score 

nol;!;",,1 nn'ntq. 
112 

r-. I"W I) 

NATIONAL 

IMMIGRATION 

FORUM 

As I1n enforccmenl-ooly approach, H.R. 2278 fails [0 address crucial is$ues, doing 

nothing \0 provide fur the future flow of workers in thi~ country [hat would cnoouroge 

future immigrants to come !I~ally, lif to Ilddress the status of millions living in the 

sh:ldows who would come fO ...... ~.lI'1l "od be rcgifitered to bet:ome produClivl' mcmbc!rs of 

our society am! economy. Additionill!y, by focusing on intcl;or ~nforcemenl. the bill 

threatens to llfl<iermine trust between immisranl communities and loc.l1 law 

enforcement, and diSlra~LS local law enforcement from their corc J}ubliesafety missioo. 

Addit;!Hl3i!y, H.R. 2-278 repreo;enL~ a dramatiedeparture from decades of legal authorit}' 

establishing the kderal gOl'cromcl1t's exclusive role in e!;tahlishing Ilrionties und 

implementing A unified scheme of immigration regulation. Sec Arizona v. United States, 

132 S. CL 2 <1 92 (2012). While our broken immigration system is a oational problt:m, 

I1.R. 2278 deals with it on a decidedly narrow level, proviilillg states and localities with 

e.>;tensiv(l and unp~dcnted authority to enRl-'l individual immigratioll laws, select 

from an)' l1umbt:r of enfOJ'(;cmcnl models. alld enforce fedt:ral. state. and locall3ws. By 

deltoglltillg enactment and enforcement of internal immigr.ltion law to a patchwork of 

Slates and localities operating under varying models emphasizing differing gauls, Il.R. 

:2.278 would establish an uneven and conf\L~in g enforcement regime that would prove to 

be nl1"urkable. Neighboring regions, states, aod e'UJ towns lIlay prioritire and enforce 

conlmdictOl), goals, limiting progress on crucial matters and SO"111g uncertainty in the 

system. 

Aocordingly, H.R. 2278 imprnrs the ability of tlle federal government to carry out a 

coherellt, unHied immigration policy. [ t hamstrings the federal government, limiting 

e.~eculive and agem:y discretion 10 prO\ide relief 10 dellef\';ng applicants. e''en 

restrictin!'. the pardon power of the pre;ident (as well as stale governors). It ~Qmpcls the 

Oep.lrtment of Homeland Set.1U;ty (DHSj to enler into agreements providiug support to 

slates and localities without guidance ru; to what constitutes "good CIlllse" for rejecting 

or terminaling such agreements. This standard pro\'ides Ihe federal government no 

leverage to negOliate With stales and localities to promote common priorities or \lllified 

enforcement schemes and prevents il from ensuring tJJal federal tax dollars and 

resources tI<) 110t g.o 10 ""oISte. H.R. 2278 also prevellts OHS from applying proseculorial 

discretion in determining whiclt immigrants to exclude or deport first. OHS and before 

thai Immigrntinn and NMnrnlizatioJJ Service (INS) has always e~ercised prosecutorinl 

discretion I\li il relates to immigration enforcement. DiscretlQl1 ~trcngthe s 

enforcement. I'rCl>;ccutori:l) discretion allows I:",· enforcement to go after priorities, to 

targel tho'ie who would do America hanJJ and reasonably deal "1th humanitarian cases. 

TIll')' allow DHS and DOJ to !;lop wastiug taxpayer resources chasing peoplt: who pose 

nu threat to puhlic ~afet)'-hard-workin g parents, "ctcr~ns, ,lOd childl't:n brought to here 
113 

NATIONAL 

IMMIGRATION 

FORUM 

by no fau lt of their own. This is a sillart law enforcement policy. Now is not the time to 

be limiting that impvrtllol discrelion ~apabmly. 

Finally. lhe waiver$ of environmental aod other laws in Sec. 606 are unprecedented and 

unnecessary, This propw.;al addresses a problem that does not e.~ sL Betwt."en 2006 and 

2012 fencing along the Southern border increased SI;': fuld, lind now 651 miles of fencing 

has been built Illong the Southwest border including double layer fencing in some areas. 

Given Ihis progress, there is no need 10 wail'l' vital laws protecting the environment. 

historicprcse",ation, or other importanlprioritics. To the extent DHS secu rity concerns 

are bt:illg haited by a particular e rwironmenl al, historic pt'l$eryalic)II, or uthe r law, there 

is no need to create tens of thousands of squure miles of unregulated territory, including 

large swaths of property along the Nnrthern and A1askall bo rd ~. 

As stated above, the NaLionlt) imm igration forum belic.ves H.R. 2278 is the wTOng 

approach. Our immigrdtion problem is a national problem dese rvillg uf 3 national. 

oomp1"1lhells;v'e apprO:lch. ol'eTl\ent to a pit.'1.:emcal, enforcement-only model that 

encourages disparate :lppro.1ches in the ~ta L'S is not the answer. This has been ll!l d 

by 36 Clln'llnt and 7tJ famwr Attorneys GenernJ who have called for n comprehensive 

immigration reform approach. As we stated aoo.-e. the Fon,m \.leliel'cs that S. 74<1 

strikes the right balance bc1.wecn interior ellfor<:cmen t 31ld borde r security, earncd 

ll'galizatioll and a p.lth to citizenship, needed refonns to our current family and 

employer immigr~tion system and efforts to de.ulI'ith the current immigration backlog. 

Onc of the key lessons lellrned from 1986 is that 01/ P.lrts of our complex immigrntion 

system arc interrelaled, mid must be dealt with in fI cohesive manner, or we will see the 

results of unintended consequences and will need to rC\isit the issues again in the future 

a5 the failings are made knOll'n .. The. Forum !ooks forward to continuing thi5 positive 

discussion on how best to move forward with pas.~ itlg brwd immigration reform into 

law. The time is nul'.' for immigmtinn refu!"m. 
114 

Teslimony o f the Immigr a nt Juslice NelWlIrk 

Submiut d 10 Ihe 

CO !lllniu~f' o'n thf_ Juditinry oflht U.s. ~t of Represent"t'''" 

Ilu ring o n June 13. 2(\t 3 

!t.R. 2278. the lr ... ngthCII Qnd Forlify Enforcemenl Arl" (SAFE Act) 

Th" Immillr.llll ~uC\: NCI"Orl.: jUN), :. coll3l;>ol1llion bel"cen the ]mnUlIl":lllt [);,fcnoo ~jcCt In N~w 

Yorl.:. ~1I' Im"ugr:uII Legal Rcsourc;, (t'mc, III Sail fr:mclS«I, mKl th~ Nallon.1.l Inlnllgr:lllon ProJCCt ,n 

iklston. "orl.:s tow:lrm 11K: Cfilllll!at;on orunJust perulLlc. for nmmgr:mts cnlarlglcd in lhe cnm1ll31 ju,IIc..; 

s~stcm and 10 l~ ld the crthlm3liz:mon of ImnHg'lvII C<)lIImun,"CS, Our orll'lm"allons """' among the 

fon:n~1 I",m181::1110)11 :lIh "QC;IC) and <l<:f"1I$(; orgarnz':lIions with ~Sp"nt Sl: IIIlh~ iIlWrs.:CtlOll be"": ... ,, Ihe 

;nllll,gl":l"on and cnnllna] jU~IIC" YSltnlj; . As SIX'Ci3hs13 in lOOse arc:.s, our Of"X3niZ.1.lions h3.u: "o~d 10 

pro,·,de t~g31 and tcchmc:rJ suppOrt 10 !mnllg"",1 a!mnHlmlics. I~g:.l p= itiOllCr~. 3Ild all ad,'QC:I!CS 

seeking 10 ad,·ana the righls ornonclt.Zi:us. 

Dunng the 1:lSI 1\\0 decao;k .. \Ie hale secn 311 IlIIprcccdcnr;,d lIlen:asc In Imnllgrn!IOII cnforecnlcnt 

poliel""_ ",.ulting in ""'""e depo;>r'\:JlIOfl oflmnngl::lnts IdlO pose: no risk 10 pubhc sufL"~ and "hose onl}' 

deSI'" IS to work. :md liv~ "ith therr famil), members "ho all.' in lhe UI~lcd St3.\cs. Legisl:Ul\1.: ,,1T0r!.5 

13rgcling Imnliyants through 311 enfur""mc "· only approocb hal-e br.:CIl 1II1nxluccd rcflCJtcdl., III 

C''"g.reS!l. COf\gl"C.'l~!lIar! G{}wd~ , ··Sm,";gth:md f OrTIfy Enfom:mcnt Act" (H R 227~) continU<'S in the 

8M,,: shameful I"in OcSlgned to cnmlll31izc immlgl::lnts ""d dnw t""m furtl.,"nto the sh.:Jdo" . , this bIll 

prOl'ide. no real rcfomt wlulions; II nlc,d~ off~", atl cxpandcxl I'Crs,OII o f the ··cnforcemen"· onlr 

ifll::ltcS'CS. a d'sc",dilcd 31'Pro.Kh dl\'oro,d from eum;nt rcalillc,s. Thus b Ill makes dea. th31 a n!i"Qril~ 

group ofc..~ rcmlst!l arc oommlllcd 10 bo>ldmg real Immlgrallon rcfonn hostage at 'a.~p;tY'crs · Clo:pc= 

The obStruClio!llslS c bmonns fOf lhe old . dl5t:~lIlxl3ll(\ offenSIVe 5n:ll~8 es omhl1l'd In the Go"d} bIll 

must step a.'d~ ""d nll n" the 1I0ti< ofml!' comn1Oll-SC"11SC rcfOlm 10 proceed. We ask the Hoose Judicla~ 

C/)JIlnll!lce to "''cd the IUICCS oflhe AmcnC311 Il"oplc and Inlm'gl':"'! cornmuniltc, IIho ,~ nl:>de ck'" 

thai they 1\3nl COfISR'SS 10 cnaC1 Ih~ kInd's orb,,·. Illat are ne>:dcd 10 bung about =1, fill. :u>dJUSI rcfonn 

thai fiscs \\h31 IS bro~cn . respcClS Ihe nshlS and dignil) 01'311 IInmlgrants Dnd IIIC" farnihes. 3I1d grounds 

the u~ ofgOl'cmment 1"C'\Oll=S In 21 " ",,:ntUI)' realilics. 

1ltc foIlOl,,"g snnpshots or lite druconi:U1 mCasu'cS OOllt.:u IlOO on th~ GO\ldy Sill make dCJI tkat 'IS 

pUI",,"". Won'-olll prol'Isiol15 1I0uid be wasteful. incffcC1;vc and bring 30001 funhcr dclUnn3110ll. ItOt 

",fO"":11I01' of our illllnigr:llIOIl system, 

Re. ults in Ih~ ~A ri.onifi tion ~ or Iff stilt ... by Illrning SlA ~ And lon lla .. ' enro. nmellt orfinrs 

inlo immigrAtion police. Th(: bill C(>nlams 5Cl'ernl pl"O>ISIOMS IIhlch promote and rltariy m3l1d3tc 

mtl31 profihng Anoll'ng loc.ll13w j:olforccmcnt to cnforc.' ~xlcrnllmmll!r:l1ion I"th th,,&:Unc 

3-..thonl~ as though thcy llcrc ICE:.gcnlS. "ill surtly n.'~ull in r.ltial profiling and violations of 

C("\ tllull on.~1 nghls 
115 

Undermines public safety and community trust by shifting necessary law enforcement 

resources away from their core mission of protecting and serving our communities to rounding 

up suspected immigrants for deportation. Effective law enforcement is premised on conlllUmity 

trust. where the community reports and cooperates with local law enforcement. As current practice 

has already demonstrated, tuming local police officers into ICE agents results in scared. 

uncoopcrative communitIes. 

Diverts scarce public resources and straps state and local governments with costly burdens of 

enforcing immigration laws. The bill's attempts to fund this grafting of local law enforcement into 

the immigration enforcement system fall far short. Already stmggling local governments will face 

cnlshing financial burdens as they are usurped into mandatorily participating in this draconian 

scheme 

Overburdens an immigration court system that is already in crisis. hl addition to ensuring that 

more immigrants are unnecessarily funneled into the deportation system. this bill eliminates bedrock 

legal procedures that will result in more cumbersome legal proceedings. further weighing down 

immigration judges and their caseloads. Immigration judges already have severe limitations on their 

power to consider granting a pardon from deportation based on family hardship and other factors. 

This bill extends those limitations to refhgees and asylum seekers facing deportation. 

Flies in the face ofthe Constitution and the U.S. Supreme Court by barring immigration 

judges and immigration law enforcement from recognizing decisions overturning an 

immigrant's conviction where it was obtained on the basis of bad advice from their defense 

attorney. Our Constitution and laws attempt to ensure that people are not wrongly convicted of 

crimes because of their lawyer's mistakes. When they are. these convictions can and should be 

overtumed. This bill would penuit noncitizens to still be deported or denied lawful status based on 

the conviction, even where it ,vas overtunled 

Unnecessarily expands the scope of criminal convictions for which a noncitizen can be deported 

to include minor misdemeanors from long ago. The current immigration law already has in place 

insunnountable barriers that prevent many individuals from obtaining legal status or strips them of 

legal status they already have for broad categories of criminal offenses. These categories include 

minor offenses, mistakes that occurred years ago, and offenses for which they have already been held 

accountable. This bill will add additional overlapping offenses to an already overly broad list, 

making individuals ineligible for legal status and subject to deportation. 
116 

NET K A National Catholio Social jl!Mi.oe Lobby 

NETWORK Statement Regarding the "SAFE Act-HR 2278" 

June 12, 2013 

NETWORK deplores continuing efforts to harm genuine immigration reform through legislative 

efforts that cater to fear-based partisan interests. The Strengthen and Fortify Enforcement Act 

(SAFE Act) is just such an effort. 

It is unjust to divert money needed to address human needs toward bigger fences and unneeded 

security measures. Representative Gowdy asserts that border security promises of the past were 

not kept. That is wrong. In recent years we have spent hundreds of billions of dollars on fences, 

drones, heat-seeking devices, border patrol agents, etc. 

There are currently as many people leaving the u.S. as entering. Immigration into the u.S. is the 

lowest it has been in 40 years. 

The SAFE Act will not serve the needs of our nation. It perpetuates unsafe, impractical interior 

enforcement practices that cater to the fear-mongering all too prevalent in our nation. 

Our organization sponsors the "Nuns on the Bus" campaign, which just visited Representative 

Gowdy's district office. The Sisters' message was simple: We need immigration laws that reflect 

our values, not our fears. 

NETWORK calls for commonsense immigration reform that: 

Ensures family unity 

Protects the rights of immigrant workers 

Acknowledges that our borders are already secure, with only minor changes needed 

Speeds up processing of already-approved immigrants 

Enhances the present diversity visa program 

Provides a clear and direct pathway to citizenship for the 11 million people who are 

undocumented in the u.S 

25 E st. NW Suite 200 • Washington DC 20001 • 202.347.9797 • fax 202.347.9864 • www.networklobby.org 
117 

lutheran Immigration 

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118 

statement, please contact Bnttney '1ystrom, D1f(Ttor rOt \dyocac,,, at 

(2lt2) 6"6-/94., or \ia email at btW~IJJ:!ill.Gihrs ora 
119 

VIA EMA IL ANI) YIWERAI, EXPRRSS 

Clyde It Alhright 

County Attomer 

Legal Departmeot, Alamance County 

124 Wcst Elm Street 

Gmham, Nortl. Carolina 2n53 

Chuek Kitchen 

'I'urrcntinr Law firm 

92(J...8 I'avcrstonc Dr 

Ru1eigh. North Carolinu 27615 

U S. flcpartlllent of J ustice 

Civil RightS Division 

September 18.2012 

Re: Unil<.-u States' lnv stigatioll oCtile Alamance CountY...Sh9riffs Ollice 

Dear Mr, Albright and Mr, Kitchen: 

The Clvil RighI.!! Division ("Division") has concluded its invcstigluion into allegations of 

civil riglJt~ vio l81i ~ by the- Alamance CoWlty Shcrilrs Office (KACSO"). We find that AesO 

bas engaged in a patlcm or practice ofv oili ti ol~' of the United States Constitution lind federal 

law. Our invc.'!IigBlion focru;ed on ACSO's oompHancc with the ViolenlCrime Control ood Law 

EnforCCllleot Act of 1994, 42 U.S.C. § 141 41 ("Section 14141 "). Titlc VI of the Civil RiKhls Act 

of 1964. 42 U.S.C. § 20{)1Jd e Tilie Vl"), and th ~ regul8!io ~ irnplcmemillg Title VI, 28 C.F.lt 

§§ 42.101-42.112. Sectiun 14141 prohibits lilwenforl:cment agencies, such lIS ACSO, from 

engaging in Ii pattern or prnetice of violating tho. CoIt~ ilUt on or laws of the United SIMes. Tide 

VI lind ils implementing reSuiPHtiullS prohibit recipien\ll or federal financial w;sist.1.flee, such Ill! 

ACSa, from discriminatin& on the ba5is oi m~e, color. or nlltioMI origin. 

lu June 20 10, we notified Alamance County and Sheriff Terry S. Johosnn of OUt 

investigation into a11eglltions ofdiscnminalory polic!Jl!: and ancol19titutiona! seHr<;rn:S and 

seizures. While law enforecmelll llgcneies rypicruly coopcmte with our investigations, ACSO 

(mol AlamOIleu Coullty h:<w pers ~(e nl ly delayed providing important information ft!Jd otherwise 

obslnlcted the nivision's invcstigation. ACSO nnd the County fLlilerlLO provide roqucMcd 

l"L'Cords and documentary cvidcnec for months and re fused to pennilllttomeys for Ule United 

States to interview CUITCnt and fonner AeSO personnel outside tbe prescnce of counsel. Tb<:: 

Division ;IOught private in!~rview~ because numerous eurrent Dnd forme r officers expressed fear 
120 

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that Sheriff Johnson or other County or ACSO otlkals would retaliate against them if they 

cooperated with thc investigation. Aft or rcpeat;:(1 attempts to resolve this dispute short of 

litigation, the Division filed a declaratory judgment action in June 2011 to secure a court order 

that such interviews were consistent wi th the North Carolina Rules of Professional Conduct.' 

Despite the lack of cooperation from ACSO and Alamance County, the Division has now 

gaUlered sufficieLlt inJorlnation about ACSO's jl~'actices to make these findings. During the 

investigation, aided by lcading experts on police pructices amI statistic!ll analysis, we· reviewed 

ACSO policies, procedures, training materials, data on traffic stops, arrests, citations, and vehicle 

checkpoints, and othor documentary cvidcnce. We also intervie\ved over 125 individuals, 

including County residents and Clll'rent and former ACSO employees.' 

We lind reasonable Catlse to believe that ACSO engages in a pal1ern or practice of 

unconstitutional policing. Specifically, we find that ACSO - through the actions of its deputies, 

supervisors, and command staff - unlawfully targets, stops, detains, and arrests Latinos. These 

acjon~ violat'" th", Fourth and Fourteenth Alt)el1dment~, Section 14141, Title VI, and the 

Department of Justice's ("DOl") regulations implementing Title VI. 

Effcc.tive rewlution of this l11aLt~r will require the ckve10pment of a comprehensive 

written agreement involving sustainable remedies and federal judicial oversight. We believe that 

it :;; in the mutual interest of the Lnitcc1 Stales, ACSO, and the people of Alamance County to 

resolvc this mattcr without litigation. If you wish to discuss a negotiated settlement, we me 

prepared to begin disclIssions immediately. Please advise us by September 30 ii' ACSO is 

interested in entering into negotiations. 

Constitutional policing and eftective law enforccment go hand-in-l:and. The pal1.ern 01' 

practice of discrimination thal we lind erodes public confidence, creates distnlsl be.tween police 

and segments of the community, and inhibits the reporting of crime and cooperation in criminal 

investigations. Bias~d policing makes the job ofpoJice oftlcers harder, not easier. The United 

St~tes llrgeo ACSO to work together with US to develop 'hwublc and comrrchell~ive remedics 

that improve public safety, the safety oJ officers, and make the job oflaw enforcement more 

e1Tective. If you are lUlwilling to do so, we will nol hesitate to take appropriate action. 

SUMMARY OF FINDINGS 

Based on our careful review of the evidence, we have concl\lded tbat ACSO engnges in a 

pattern or practice of discriminatory policing against Latinos. The discriminatory conduct we 

obs~rved is deeply rooted in u culture thaI begins wilh Sherill' JOh~SOll and permeates th~ <:nlire 

agency. 

1 Bccau.3e we have bee!! ~b[t: to gfltllCl' Sll fficie:lI evicence to Inrd<e these findings without addiliollal interviews or 

ACSO pel'soll:lel, we are contemponll1coLlsly vt'ithd:'swing. this lawsuit. 

:! F;:!::ieral law ;:-rohibits ACSO from intimidaling, threatening, coercing, or engaging in other reL..:1liatory 01' 

dbci'imi:latory con~~lct, (11' altemptil:g to do lh~ S~1I11e~ agi'l~nsl tmyone because he or she hCls coopenlted with Olll' 

invcstigJlion or has takell any rlcticil or p.;lrticipfltcd :n any action to secure rights protected by the civil rights laws, 

See 18 U.S.c. § 1512. 
121 

-3-

Our factual fmdings of discriminatory poliuing include the following: 

• !\ rcccnt statistical study commissioned by DO] iOLlnd that !\CSO deputies are 

between four to ten times more likely to stop Latino drivers than non-Latino drivers. 

Individual accounts of vehicle checkpoints and ~onduct during traffic stop~ 

corroborate ACSO's discriminatory enlorcement activities, including locating 

checkpoints in predominantly I.atino neighborhoods and treating stopped drivers 

differently based on their ethnicity. 

• ACSO's booking practices, including practices related to immigration status checks, 

diK~l'i1l1inate again,! J,a(ino~. Individual accounts confirm that ACSO impropcrly 

detains Latinos for immigration enforcement purposes after they have posted bond. 

ACSO's discriminatory activities arc intentional and motivated by the Sheriffs 

prcjudic8s against Latinos. Tlie Sherill' ami olhers in ACSO's leadership have 

explicitly instructed deputies to target Latinos for checkpoints and arrests, and have 

made statements (hat reveal a dlscriminatory bias against Latinos. 

ACSO's departures D'om state law and policing standards in reporting and monitoring 

its ~ctivities mask ACSO's discriminatory conduct and inhibit proper monitoring of 

traffic enforcement activity and racial proliling. 

OU]' factual findings suppo]'t the following legal determinations: 

ACSO discriminates against Latinos by engaging in a pattern 0]' practice of condllct 

that violates the Equal Protection Clause of the Fourteenth Amendment, Section 

14141, Title VI, and tbe Department's Title VI implementing regulations. 

ACSO engages in a pattern or practice of unlawful seizures, including unjustified 

stops of'L,ltinos ll1 violation of the Fourth Amendmen( and Section 141 'II. 

BACKGROCNO 

Alamance COllnt:', North Carolina, is located in the central Piedl11o~t region of the state. 

The COlll1ty has approximately 151,000 residents, ofwbom 71.1 % are white, 18.8% are Aflican 

American, and 11..0'% are Latino or l-lispanic 3 Alamancc County's Latino population hus grown 

rapidly over (he last two decades, from a population of only 736 individuals in 1990 to 16,624 

individuals by the 2010 Ccnsu,,4 ACSO i'i the largest of eight 10cal1nw enforcement agcncics 

3 U.S. CenSI.lS BU:'e~u, Alamance CO'.lllty, 2010 Demogn1phic Dnta, 

http://fhcH:ndel'?..censl1s_gov/rfil';CS/[~lhlcsurvi';;l's/jt:.r/pagc,jpro(illctview.xhtml'!l'lt'c'-'hkmk (I",<.;t visited Sept. 1 J, 

2012j. 

"Id. 
122 

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operating 'within the County, As 0[2010, there were 123 full-time sworn officers at ACSO,5 

[ewer than a doz~n of whom idel1lifleJ us mcrnber~ or a minority rOl1p, Another 147 employees 

were f'.lll-time civilia~ employees, incltlCling correctional officers. 

FACTUAL FINDINGS 

We find that ACSO cleplltie~, wpervisors, ttl'll! command ,lttll; induding Sheri IT Johnson, 

engage in a pattern or pructice of discriminatory policing against Latinos, Sheriff Johnson both 

directs this discrimination and fosters it by promoting a culture of bias within ACSO, This 

paLtel'1l is manifest in a range of (;Undue! that is described more fully below. 

A. Discriminatory Practices 

Since at least 2007, ACSO has targeted Latinos in Almllance County for heightened 

enforcement activity, This activity includes disproportionately targeting Latinos for traftic 

cnfolwmelll, positioning vehicle clwci(points in Latino ncighborhoods, and detaining Latinos in 

jail after there is no basis \0 do so, ACSO policies and practices deny Latinos equal protection of 

the lav.", erode public conlldence in law enforcement, and diminish ACSO's capacity to protect 

Pllblic ::;afety for all COUIlLy r~sidents, 

Firsr, A CSO targets Latinos/of traffic stops. A statistical analysis of ACSO traffic 

stops dCl11onstrat~s that ACSO's traffic enforcement practices lwvc a signitlcantly discriminutory 

impact on Latino drivers, Indeed, statistical analysis comparing ACSO's traffic stop data to all 

violators 011 several COLmly ro~dways found that, depending on tho road analYLed, ACSO 

deputies are anywhere between four to ten times lllore likely to stop T ,fltino drivers than nonLatino dri vel'S, These results show a discriminatory impact at leasI as great as any previously 

sem in thc United States. In addition to this statistical evidence, !he Division's interviews Willi 

deputies and community members provide additional evidence of discriminatory traffic stops, 

Many of these stops involved drivers cited only for driving without a license, an offense not 

ob<,orvable from the mad, Tn one reported in()itknl, Ull ACSO depuly sliid he stoppeu a Latino 

mall because "most of them drive without licenses," 

Sec(JIld, A CSO t(lrge/.~ Latillo,' witit vehicle checkpoints. Sheriff Johnson sclec,ts, and 

encourages his oiIicers to select, predominantly Latino neighborhoods to sct up vehicle 

chedcpoints, Those checkpoint locations arc often positionctl to turget only till> residents oflhese 

predominantly Latino communities, as they are stationed at 01' nee.!' the only enrralKe,s ami exits 

of these neighborhoods, Although we learned that deputies often establish checkpoints without 

receiving the roquircJ prior approvall'rOJn n supcrvisor ancl without cl'eating any recorcl ol'tb 

checkpoint, both docHmented checkpoints and intel'view>; conllrm that ACSO cl~eckroints cluster 

at or near the entrances of predominately Latino neighborhoods, 

; FIJI, Crime ,n the United Sta:es 20[0, North Caro['na: Fll[[-lime Law EuforcemcllL Employees, Taole 80. 

hllp:llwww.fbi.goV .• 80011:-11skiis/ucr/crime-il1-The-ll.s/20 1 O/crime-in-the-ll,s,-20 I Oll.ables/table-80/1 Olbl80nc,x Is (Iasl 

vi,iled Feb, 23, 20 [2), 

6!d. 
123 

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Third, and again at the direction of Sheriff Johnson, ACSO checkpoint practices 

discriminate agaillst Latinos. Deputies single out Latino drivers for arrest at checkpoints, even 

for millor traffic violations. Similarly situated non-Latino drivers arc oftell wavcd through the 

checkpoints without providing identification. We also find that when ACSO dep'.lties stop 

drivers for minor tr~ffic offenses, whether at a checkpoint or when conducting routine lrnffic 

stops, the way ACSO treats drivers depends on the driver's ethnicity. Specifically, we find that 

when stopped for minor traffic offenses, ACSO deputies arrest rather than merely cite Latino 

drivers, bm riot drivers of otber cthnieilies. Indeed, Sheriff Johnson has directed his supervisory 

officers to tell their subordinates, "If you stop a Mexican, don't write a citation, arrest him." 

Non-Latino drivers, when slopped, are is~ued dtations but n()l arre~ted ror the ~lIlne types or 

minor traffic violations. In one instance, a Latino man and a white woman were stopped by the 

~ame deputy, on the same day, for the same offense, and the deputy arrested the Latino man but 

ollly gave the white WOmlUllt wrillen citution. 

F(ll/fllt, ACSO (l/.~crll1lllliltes agaillst Lat/nos ill itsja{/ b(loking (lnd detention 

procedures, Our investigation revealed that correctional officers verify the immigration status of 

all det<linees who "appear" T ,alina, regardle~s of their respome to c.itizenship questions. 0 fReel's 

decide which detainees to interview based on assumptions aboul nationality mld elhnicily. Those 

who appear "American" are not interviewed, even if they Call110t produce identification. Further, 

law enl()rc~rnenl detains L(Ltinos for illll1ligration statu, chccb even aftcr bond has bcen posted. 

Our interviews confirmed that in at least some cases, Latino individuals who had posted bond 

were informed they would not be released because of a U.S. Immigration a.ncl Customs 

Enforcement ("ICE") detainer, even thongh ICE had not yet b~en contacted and 1:0 detainer had 

been issued. 

Fiftil, tlte Sheriff directs his deputies to target predominantly Llltino neigltborh oods/or 

increased en/orceme1lt based 011 tile Sheriff's all('f1-8tllted belie/tilat ',atinos are responsible 

for A lamallce County's drug tmde. For example, at a statl" meeting Sheritr Johnson stawd, 

"We've had a big drop in the Hispanic population, but we still got a lot deaEng dope and we still 

gotalol ol"dtizcns iJi this cOllntry doaling dope with them." Accordingly, he dirccted his 

VicelSpeeial Operations Unit to target three or four predominately Latino l:1obile home parks 

and llcighbOl"hoods. As he described these height~ned enron'~lllent ~rrort~ in pmi()lllinanLiy 

Latino areas, Sheriff Johnson stated, "Hell will come to these places and the devil gonna come 

with him. And you folks [the Special Ops Unit] gonna be the devil." 

Sixth, ACSO's discriminatory practices undermine its ability to serve and protect 

Alamllnce COIIII(V'S Lllt;1I0 residents (lnd tire community at larr:e, Dffcctive policing is largely 

built on a relationship of trust with all segments of the community. ACSO bas done almost 

nothing to build sueh a relationship with the C01.l11ty's Latino residents, and much to destroy it. 

Our interviews with ACSO oHicers and community members reveal that tbe abse·nee of"lbs trust 

has substantially compromised policing by limiting the willingness of witnesses and victims to 

report nime'i and :;pt"lk to ACSO dCjmlies about criminal acti vity 01" cornplaints of misClHlduet 

by ACSO oIficers. Our investigation finds that Latinos are afraid to call th2 police to report 

crimes and provide information pertinent to solving crimes. 
124 

-GB. Discriminatory Bias 

A culture of discrimination against Latinos pervades ACSO. The Sheriff and the highest 

levels of command staff support and foster this culture of hi as. Sheriff Johnson has nlade 

numerous statements, both in public and to his deputies and con:malld stall, exhibiting his bias 

against Latinos. 

The Sheriff.~ statements freqllently assume t~at Latinos in Alamance COllilty are 

undocumented immigrants and are involved in criminal activity. For example, in one widely 

publicized statement, in the course of discussing undocumented immigrants, Sheriff Johnson 

suggested that anyone of Mexican national origin was inherently suspicious, saying: "Their 

values are a lot different thcir morals - than y,"hut we have here. Tn Mexico, there's nothing 

wrong v.ith having sex with a 12-, 13- year old girl .... They do a lot of drinking down in 

Mexico.") The Sheriff also uses derogatory epithets --- such as the plu-~sc "taco caters" -when 

referring to Latinos in speaking witb his ,taff, and his command staff tolerates the use of 

derogatory mcinl "nel ethnic epithots hy i\CSO deputks Hnd corl'ccliomd ()nkel'~. 

I'urthel', the Shcri IT ,md other ACSO command staff have explicitly dirccted dcputic~ to 

target Latinos during enforcement actions. For instance, the Sheriff has instructed bis officers to 

arl'c~t all Latinos whu cummit the (raffic inj)'ac-lion oj' driving without a Iic~nsc. Fh,sed Oll iiuch 

directives, ACSO deputies understand that they should target Latinos with their discretionary 

enl'urcement actions and bring them inl.u the Alamance County Jail 1.0 be l'lll1 through 

immigration databases,8 rather than simply issuing them citations. 

C. Departures from Policing Standards and Procedures 

ACSO has departed from state law and policing standards in ways that have adversely 

afTected Latinos (Uld contribute 10 violalions of constitutional and lhkral rights. [iirst. ACSO 

does not comply with state law, standard policing practices, and its own policies concel'l1ing the 

documentation of vehicle checkpoints and tra11lc stops. Deputies often Jisr,gard ACSO's policy 

reqlliring them to file an action plm1 3nd obtain s\lpervisory approval prior 10 seiling up a vehicle 

checkpoint and to complete a report folloffing each checkpoint. In addition, ACSO has "grossly 

underreported" the nUl11ber of traffic stops its deputies l11ade,9 even though the collection of 

tramc stop data is required by I\'orth Carolina law. 10 Because it lacks vehicle checkpoint and 

traffic stop data, ACSO cannot properly monitor its deputies' traffic enl'orcemel1t activity or 

7 Kristin Co:lins, Shel'!//s Help Fed, Deport lIIega'! Aliens, The News and OlJserver, Apr. 22, 2007, at A I, 

IllIp :/..-www _ OlC wso bSCI'" r .CD nJ..''2007/0~ 122/5 99 8~/,hel' itT,-he I p-reds-do rort-i II ega I. h tllli. 

" In 2007, ACSO -,ntered into a Mell1ol'andum of Agreem-ont ("MOA") with U.S. Immigration ami Customs 

EnrOl'cemc:u Plll'SlLf'l1t to B U,S,C. ~ I 357(g} This MOA permits designated .find tmined ACSO orficers to 

inYCSligfitc individuals ddaillec. at the AJElIll~lIlCe County Jail rot" immigrC:lliun violations, The MOA fJruhibils ACSO 

from condllcting immigration checks on individuals outside orthcj,dl setting, 

~) Rob·:-1'll30YC1', Jh\'Pan/G"~ Slo,Dped by Shel'III's DJpartl1'lf!.nt uGI'()SS/Y UncierJ'epoNe.c/' "'!'he l3lJ1'HlJgloH TilIlU::;.Nuws, 

Apr_ 7,2009. 

10 N. C. Sta:_ Ann. § I 1/1-10.01 ("FFcolive .1<-11). I, 7.D07, amended effective Jan. 1,7010). 
125 

reasonably determine whether or not deputies or units engage in r<:cial protiling. Additionally, 

Llw number of Latin us bookod intI) j<lil for Inil1o)' "fr"nses is m((sked b,,~allse under ACSO policy 

minor traffic offenses are logged into a book and detainees are listed only as either "brlack 1" or 

"wlhitej." 

Second, ACSO's Special Operations Unitll does not adhere to record keeping 

requirements or other stllDdard policing practices. The Unit performs traffic cnforcement and 

other special operations prioritized by the ~heriiI. These officers, hand-picked hy and loyul to 

tbe Sheriff, perform most of the County's traffic stO?S and target predominantly Latino 

neighborhoods with road blocks, vehicle stops, raids, and increased patrols at tbe direction of 

Sheriff Johl1,'ol1, but with little oversight. These depllties often do not fill out required 

documentation of enforcement actions, limiting oversight of their activities. Additionally, 

tnernbcrs of the linit are incon~istontly disuiplincd for misuonduct. 

LEGAL OISCUSSIOI\ 

Section 14141 grants the United States authority to sue a state or local government for 

e(iuitable and ueclaratory relief when a "governmental authority ... engage[s] in a pattern or 

pmctice 0 f conduct by law enforcement officers ... that deprives persons of rights, privileges, or 

immun~ties secured or protected by the Constitution or laws of the United States." 42 U.S.C. 

§ l4141. Doth the Constitution and fcderal law prohibit intentional discrimination on thc basis 

of race, color, or national origin. Title VT provides that "[n]o pen<oll in the United States shall, 

on the ground of race, color, Of national origin, be excluded u'om participating in, be den:ed the 

bencfils 0[, or be subjected to discrimination under uny program or aclivity recoiving lfjederal 

financial assist~U1Ce." 42 U.S.c. § 2000el. In addition, the Title VI implementing regulations ban 

recipients of federal tlll1ds from engaging in activities that have a discriminatory effect on the 

ba~is of rrLcc, colD!", or national origin. 

While ACSO should c'.sl~blish its own enforcement priorities, ACSO's actions must 

comply wil~ the Constit(;iion And lAWS of the United StAtes. We tind thAt, by intentionally 

targeting Latinos, ignoring basic law enforc.ement protocols, and failing to implement 

m~anillgful safeguards against disc.rirninatOl'Y police practices, ACSO engages in intlmtionai 

di.,crir:linalion in vio:ation of the I'omteenth Amendment, Fourth Amendment, and fedemllaw. 

We further lind :hat ACSO's cnforcement activities have a discriminatory effect on Latinos in 

Alamance County in vio~atioll of DOfs ret>ulations ifnplementing Title VI. 

A. Discriminatory Policing 

Our investigation provides reasonable cause to believe tbat ACSO's discriminatory traffic 

enforccmcnt ancl vohicle chcckpoint activities violatc the Ellll,d Protcction Clause ofthc 

I'ourteenth Amendment, Title VI, and Title VI's iJl1plen~enting reglilmions. 

The Equal Prote('.lion Clause prohibits certain law cnforcemenL practices that discriminalc 

ba.,ed on race, ethnicity, or n2.t1onal origin. Whren v. United States, 5 1 7 U.S. 806, 813 (1996). 

A law enforcement ?,gency likc ACSO violi'.tes the Equal Protection Clause when its decision 

II This ~Injl h(]·~ gOtl~ hy ji rfcrel1t n;]ll1eS, inchlding "Vice" ftnd "Street Crimes," Ihro\lgh(l~11 its exis\eflce, 
126 

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maker adopts a hlcially neutral policy or practice with a discriminlltoty intenlllnd Lhllt policy or 

practice has a discriminatory effect. United States v. Armstrong, 517 U.S. 456, 465 (1996); 

Woshlngton v. 1)11\11",426 U.S. 229, 239-110 (1976); Monroe v. City o./Char!ol/e.\·\·,'!le, 579 FJd 

380,388 (4th Cil'. 2009). Likev.1se, law enforcement officers violate tbe Equal Protection Clause 

when they administer or enforcc a facially neutral policy in a manllec that disproportionately 

affects a protected group and they act with discriminatory intent. Monroe, 579 F.3d at 3gg. 

A law eni'orcement activity may 11111 afotil of the Equal l'rotcc':ion Clullse even wl:ere 

discriminatory intent is not the decision maker's sole motive. Smith v. TOlin olClarkton, 682 

F.2d 1055, 1066 (4(h Cir. 19R2); Orgain v. City o(Sa!isbury. J05 P. /\.pp'x 90, 98 (4th Cir. 2008) 

("Notably, the Equal Protection Clause does not require Plaintiffs to prove that the challenged 

action rested solely on racially discriminatory purposes."). Rather, an equal protection vi olation 

occurs when evidcncc shows that "racial animus was one oj' ,;everal CICtors that, (",ken together," 

motivated the discriminatory acts. Orgain, 305 F. App'x at 98; see also Personnel Adm 'I' of 

Mas.\'. v. Fe~ney, 442 n.s_ 256, 279 (1979). To assess whethm intemional discrincillation 

animates a law' enforcement activity, courts examine l~e totality of tbe circumstances with 

particular attention to factors the Supreme Comi has identified as most pWQAtive 0 F 

cliscriminatOl'Y intent. See ViII. o/Arlinglon Heights 1'_ Metro. Hous. Dev. CO/p., 429 U.s. 252, 

265 (1977). Those factors include: evidence of discriminatory effect; evidence of departmes 

from l101'Inal procedurcs; thc specific sequence of CYcl1i.1that led to the dis~rindrl<llllry pmdices 

at issue; and contemporaneous statements from a decision maker that reveal a discriminatory 

intcnt. [d. <It 2M-fiR: .~ylvio D(,v. Corp. v. Calwrl en/}·., 48 FJd 810, 819 (4th Cil'. 1995). 

Our investigation revealed substantial evidence that Sheri ff J ohnso!l intcntionally 

impiem<:mkd law <oni(ll'c<omenl pnlCtic~s that discrimimlle ~gainst Latinos. While Sheriff Jilhn~uli 

often justifies ACSO's activities by citing his desire to combat illegal immigration, we conclude 

that anti-Lutino biao motivates his selection und imple1l1cntntion of ACSO'" enforcement 

priorities. Sheriff Johnson has made racially insensitive comments, tolcrat'od racially derogatory 

remarks ii'om ACSO command staff, and ordered various discriminatory en:'ol'CCl:lCnt activities_ 

Indeed, Sheriff .Iolulson has ordered n\1lncroll~ vehicle checkpoints and olher 1m"! eni'orcement 

activities in predominantly Latino neighborhoods, insirclcted ACSO orrice,s to stop Latino 

driven; on roadway" and insisted that officers lllTest ~nd detain Latino drivers for minor 

offenses. 

In addition to uncovcring evidcnce of c1iscl'irninalol'Y intent, our inv~sligation 

demonstrates that several ACSO practices result in a discriminatory impact on Latinos. 

Slatislical evidence shows thai ACSO deputies stop Latino drivers at higher ratc·~ th,lII ~imilarly 

situated non-Latinos on Alamance County roadways. This evidcnce not only demonstrates a 

disparate impact on Lalino drivers, but also bears direct.ly on the discriminatory motives of those 

implementing ACSO's lntJli~ <onJorcement activities. It is difficult to conceive of any valiu, nondiscriminatory explanation Jar cnforccment practices that are roughly l'olll' to tcn times more 

likely 10 stop Latino drivers tilalllloll-Latino drivors. This s((tiistlc.(I: ~vkkn~e is ennsisltnl with 

what witnesses have told liS abollt ACSO deputics - b particular ACSO Special Operations -

frequently seizing lind detaining Latino drivcl's withoul cause. 
127 

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Moreover, analysis ortlle u-a11ic checkpoints ACSO conducted and documented trom 

2007-2011 ciemonstrates that ACSO disproportionately locates checkpoints in or near 

prcc[r)]Jlirmteiy Latino ()ommunities, Intervicws with County resicknLs con firm thll! these 

discriminatory checkpoints continue today, Not only does ACSO frequently locate checkpoints 

in Latino arcas, the I'csldts of 01]1' investigation indiCAte that ACSO officers cxceut;; checkpoints 

in a discriminatory manner. For these and other reasons, the evidence establishes that ACSO is 

engaged in a pattern or practice of equal protection violations. 

Our investigation also provides reasonable cause to believe that ACSO's discriminatory 

jail pn]clice, yiol,tk the EquAl Protection Clause, ACSO's jail proceduros unlawfully targe,t 

Latinos for immigration status checks during booking and detention. 

Discriminatory hnv enJorcement activities are also prohibited by Ti,!e VI. J'itle VI 

establishes that "[nJo pel'son in the United States shall, on the ground of l'ac~, color. or national 

origin, be oxcludcd fr01n particip1tting in, be d~nieu the ben~fits of, [11' be subjected to 

discrimination under any program or activity receiving [f]ederal financial assistance," 42 U,S,c, 

§ :WOOd, In ftddition, the regulations implementing Title VI proscribe "cri(eria or methocs of 

administration" that exert a discriminatory effect on the basis or mer., color, or national orilSin, 

28 c'F,R, § 42,104(b)(2), ASCO and Alamance County receive federal funding and have 

yiol(tted Title VI and its illlplernenting regul<\tions i()l !he r~ao(lns dduiled above, 

B. Unreasonable Seizures 

ACSO deprives Latino residents of their Fourth Amendment light to be free of 

"ulln:a;;ol1abk searches and seizures," U,S, Const. Amend. IV, Even the tempormy dctemioll of 

an individual by police during a traffic stop for a limited purpose constitutes a seizure for Fourth 

Amendment purposes, Whren, 517 U,S, at 809-10; United Slates v, Branch, 537 FJd 328, 334 

(4th Cil'. 2008), A (ramc ~lop l11ustthus be "reasonable" under the circumstances. WhrclJ, 517 

U.S, at810, Roving checkpoints lor license and registration checks are not permissible, 

Delaware )', Prouse, 440 U.S, G48, G57, GGI (1979). S\oppiltg a vehicle at a police clwckpoint 

like\vise constitutes a seizure within the meaning of the Fourth Amcr,dment. Michigan Dep '10/ 

Stale Police v, Silz, 496 U.S, 444,450 (1990), While the Fourth Amendment allows vehicle 

checkpoints in certain narrow circuJllstances, see Sitz, 496 U,S, at 454 (upholding sobriety 

checkpoint), police may not utilize checkpoints to pursue generallmv enforcement goals, such as 

illlllligl'lltion sw~eps or drug interdiction. Nor elill onic~rs inoculate an impermissiblo vehicle 

checkpoint by articulating a prctextual justification, See, e,g., Uniled Slates v, Huguenin, I S4 

F,ld 547, 555 (6th Cir. 199R) (pretexllml checkpoints 11111st be jmlged by true progT1111l11aric 

purpose); Uniled Slates v, lv/orales-Zamora, 974 F,2d 149, 153 (10th Cir, 1992) (,eversing denia: 

of suppression motion and holding that a driver's license checkpoint was in fact a pretext [or 

drug s~Hrches), 

Our investigation furnishes reasonable calIse to believe that j\CSO's practice oFtorgeting 

Latino drivers via h'affic enforcement and vehicle checkpoints violates the Fourth Amendment. 

These racially motivated stops are unreasonable under the Fou,th Amendment. As described 

above, ACSO locales che~kpoints in heavily Latino areas to Ja~ilitule ill1pennissi~lc 

progml11111atic objectives, including de facto immigration sweeps and drug interdiction, ACSO 

of ricers likewise engage in a practice of stopping Latko drivers on Alalllance County r()a.Jway' 
128 

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regardless of whether reasonable suspicion exists lor the stops - a practice that cOI:travenes the 

"reasonableness" the Fourth Amendment prescribes. Further, ACSO unjustifiably detains 

Latinos aCtcr they have posted bail. 

REMEDIAL MEASURES 

The Iildual Jlndings detailed above provide rea~onabk 0'I'I'IS~ III beli~ve (hil ACSO 

violates the Fourth and Fourteenth Amendments to the United States Constitution. Section 

14141, Title VI, and Title VI's implementing regUlations. The Civil Rights Division ucwrdingly 

notifies you that, absent ACSO reaching an agreement with the Division to correct these 

violations, the United States will initiate litigation to compel compliance with the Constitution 

and federal Jaw. 

The constitutional violations and institutional deficiencies omlinec\ lIhove ure the produ~t 

of an ingrained culture that encourages and tolerates the discriminaio~y treatment of Latinos ane 

an agency that has demonstrated its flagrant disregard for constitutional protections. Reform will 

require sustained commitmentlo long-term stlUctural. cultural, and iJlstitut~oJlal changc, 

including the [oIlO\ving: 

Elimination of Overt Discrimination: ACSO must develop and implement policies 

prohibiting discriminatory enforcement activities and the use of dnogatory langw:ge 

aimed at racial and ethnic groups by ACSO llJiicers while on duty. 

Traillinv [(Ir ACSO DelJllties Stll)('rvisors and Comnullld StflfT: ACSO must develop 

and implement effective and meaningful training for its officers and relevant non-sworn 

staff in constitutional policing, including hm" to pcrform stops, scarchcs, :dnll'c,-, and 

arrests consistont with the requirements of the Fourtb and fourteenth Amendments. 

Training must also include instruction regarding language access o'Jligations and 

procudure~, 

,~.nQ.cl&Qpcl'ation~ Unit: ACSO Inus( develop und implement ddfliled policies, 

procedures, training, and oversight regarding t'Je operations and activities of the Special 

Operations Unit. 

Data Collection, Analysis, and Risk Management: ACSO must develop, implement, and 

enforco" ~()rnpl'eh~n~ive and a~curale duta cullectioll system doculllcnting all AeS() 

enforcement activity. Such a program requires consistently completed, detailed 

sudiUible reports for vehicle checkpoint~; traffic and pede~tri"n ~tops; senrches Hno 

seizures; raids; and patrol activities. Tlus pro[scram a;su requires regular m:alysis and 

audits of the data to enable ACSO to supervise, manage, and intervene whon appropriate. 

Complaint System and Internal Affairs: ACSO must develop and implement a 

comprchcllSivc complaint, invcstigatirlll, and ci"ciplinary system to enable it to hold 

oflkers accountable when they violate policy or the law. The comp:aint system must be 

well-publicized and accessible to all community members. [t must permit members of 
129 

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lhe public, including ACSO officers, to make complaints against ACSO stafTand 

deputies without fear of retaliation. The internal investigative process must include clear 

avellnes for udjl]dication, di~ciplino, and criminal prosecution, if n~co~~ary. 

Communilv Outreach; ACSO must meet the law enforcement needs of all its residents. 

~~ga;~il~~~~-fii~-~i~-;:;;;e or etbnicity. To tbat enel, ACSO must engage witb and reach O{lt 

to ACSO's Latino residents to ensure that it is fairly and effectively providing tl~em with 

law enforcement scrvices. 

TIlE ROAn MillAn 

We strongly believe that effective policing and constitutional policing are inseparable. 

We prefer to work collaborativoly with law enforcement agencies, ~s we have in recent ye:U'sincreasingly at their request - to address serious concerns that threaten to nndermill~ public 

confidence and hinder effective policing. We preFer negotiation ]'[lther thunlitigation. 0'.]1' goal 

throughout every investigation is to work cooperatively to develop and implement sustai1:able 

reform measures lbat will reduce crime, ensure respect for the Constitution, and irlcrease public 

confidence in law eniorcemenl. 

We stanci ready to roll lip our sleeves lUld work with you to mklr"~~ Ih" C(lI\(;ern~ o\\tlined 

in this letter. We remain prepared to take prompt, appropriate legal action if you choose to 

forego coJlabol'ation. We look fOt'wal'd to hearing from you by September 30th as to whether 

you wish to seek a negoliated resolution of this maller, Ploaso noto that this lcttcr is a public 

clocument and will be posted on the Civil Rights Divi.sion's website. If you have any questions, 

ploasc contact Jonatlllll1 Smilh, Chier or lhe Spedul Li(ig,llioi1 Section, at (202) 514-6255. 

Sil~cerely, 

Thomas c. Perez 

Assistant Attorney General 
130 

IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF NORTH CAROLINA 

United States of America, 

Plaintiff; 

v. 

Teny S. Jolmson, in his official capacity as Alamance County Sheriff, 

Defendant. 

No. ______ _ 

COMPLAINT 

I. INTRODUCTION 

1. From at least JanualY 2007 to the present, Defendant Sheriff Teny S. Johnson, 

through the deputies under his control and at his direction, has engaged in a 

pattern or practice of discriminatOlY law enforcement activities directed against 

Latinos in Alamance County. This discriminatory conduct deprives Latinos of 

their rights under the Fomth and Fomteenth Amendments of the United States 

Constitution. To prevent Defendant Johnson from continuing these 

unconstitutional activities, this action seeks declaratory and injunctive relief under 

Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994, 

42 U.S.c. § 14141. 

2. Defendant J olmson acts individually and tlu·ough the deputies he appoints to assist 

him in the performance of his official duties. N.C. Gen. Stat. § 162-24. The 

Sheriff and these deputies operate collectively as tile Alamance County Sheriff's 

Case 1:12-cv-01349 Document 1 Filed 12/20/12 Paae 1 of 24 
131 

Office ("ACSO') 

., ACSO, at the direction of Defendant Johnson, intentionally discriminates against 

Latino persons in Alamance County by targeting Latinos for investigation, 

detention, and arrest, and conducting unreasonable seizures and other unlawful 

law enforcement actions in violation of the United States Constitution and federal 

law. 

4 ACSO deputies implement their office's unlawful policy of targeting Latinos in a 

number of ways. For instance, ACSO deputies routinely target Latinos for stops 

dming roving traffic enforcement operations. A 2012 statistical study 

commissioned by the United States Department of Justice ("DOr) illustrates this 

discriminatory practice. The study indicates, for example, that a Latino driver in 

Alamance County is as much as ten times more likely than a similarly situated 

non-Latino driver to be stopped by an ACSO deputy for committing a traffic 

infraction. 

Other discriminatOlY practices by ACSO against Latinos include: 

disproportionately subjecting Latinos to unreasonable seizures; arresting Latinos 

for minor infractions, such as the failme to have a valid driver's license, while 

only waming or issuing citations to similarly situated non-Latinos; stopping 

Latinos at vehicle checkpoints while allowing similarly situated non-Latino 

drivers to proceed; disproportionately locating vehicle checkpoints in 

predominantly Latino neighborhoods; and automatically referring Latino arrestees 

2 

Case 1:12-cv-01349 Document 1 Filed 12/20/12 Paae 2 of 24 
132 

booked at the Alamance County Jail to investigators at United States Immigration 

and Customs Enforcement ("ICE"). 

6. These discriminatory activities are the product of a culture of disregard for Latinos 

cultivated by Defendant Johnson and other ACSO leaders. ACSO leadership has 

repeatedly directed its deputies to target Latinos dming enforcement actions and 

used derogatory comments and racial epithets to describe Latinos. For instance, 

while at a vehicle checkpoint, Defendant Johnson issued instructions to his 

subordinates to "go out there and get me some of those taco eaters," which his 

subordinates understood as a directive to target Latinos for all'est. 

7. ACSO's deficient policies and virtually non-existent oversight of its biased 

policing activities further underscore its intent to discriminate against Latinos. 

ACSO consciously ignores the discliminatory effects of its practices, as is 

demonstrated by its ineffective training, virtually non-existent data collection, 

analysis, and accountability measures, poor supervision, and other depaliures from 

standard law enforcement practices. 

II. DEFENDANT 

8. Defendant Teny S. Johnson is sued in his official capacity as the Sheriff of 

Alamance County. Defendant Jolmson has served as Sheriff of ACSO since 

January 2003, and has been ACSO's ultimate decision-maker at all times relevant 

to this Complaint. 

9. ACSO is the largest law enforcement agency in Alamance County, NOIih 

., 

Case 1:12-cv-01349 Document 1 Filed 12/20/12 Paae 3 of 24 
133 

Carolina. ACSO has approximately 123 full-time swom officers and an additional 

147 civil employees. 

10. Under North Carolina law. the Sheriff is the final authority for all duties assigned 

to his office. N.C. Gen. Stat. § 162-24. Defendant Johnson is responsible for all 

of ACSO's law enforcement activities, including ACSO's enforcement policies, 

priorities, and tactics, and the hiring, training, promotion, supervision, and 

discipline of deputies and other ACSO personnel. Defendant has the authority to 

terminate ACSO deputies and command staff at any time. He is ultimately 

responsible for the actions and omissions of ACSO deputies and command staff. 

III. BACKGROUND 

11. Alamance County is home to roughly 151,000 residents. The County's population 

is approximately 71.1% white, 18.8% African American, and 1l.0% Latino or 

Hispanic. 

12. The Latino population in Alamance County has grown considerably in the last two 

decades. According to Census data, the County had fewer than 800 Latino 

residents in 1990, comprising less than I % of the total population. By 20 10, the 

Latino population had grown to 16,624 - 11% of the total population. 

13. In January 2007, ACSO entered into a Memorandum of Agreement ("MOA") with 

ICE pursuant to Section 287(g) of the Immigration and Nationality Act ClNA"), 8 

U.S.c. § 1357(g). 

14. ACSO's first MOA with ICE became effective on January 10,2007. The MOA 

4 

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134 

followed the "detention enforcement model," whereby ACSO personnel who 

completed mandatOlY training could investigate potential immigration violations 

committed by individuals detained at the Alamance County Jail. Certified officers 

could inteITogate detainees and complete criminal alien processing procedures, 

including fmgerprinting, photographing, and interviewing, The MOA did not 

authorize ACSO officers to enforce federal immigration laws outside the County 

Jail. 

15. On September 18,2012, ICE terminated its MOA with ACSO, elinlinating ACSO 

officers' ability to investigate potential i1lllnigration violations by individuals 

detained in the ComIty Jail. 

16. Also on September 18,2012, the United States notified Defendant that, based on 

its investigation, the United States found reasonable cause to believe that 

Defendant Jolmson and ACSO were in violation of 42 U.S.c. § 14141 and Title 

VI of the Civil Rights Act of 1964,42 U.S.c. § 2000d, and that this lawsuit would 

follow unless Defendant entered into a court enforceable agreement remedying the 

violations ofthe Constitution and federal law. 

17. On September 26,2012, counsel for Defendant Johnson declined the United 

States' invitation to enter into meaningful settlement discussions, asserting that the 

United States' legal conclusions were "meaningless" and that "no remedial 

measures are needed." 

18. The United States thereafter determined that securing Defendant's compliance 

5 

Case 1:12-cv-01349 Document 1 Filed 12/20/12 Paae 5 of 24 
135 

could not be achieved through voluntary means. 

IV. JURISDICTION AND VENUE 

19. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 

1345. 

20. The United States is authorized to initiate this action against Defendant Johnson 

under the Violent Crime Control and Law Enforcement Act of 1994, 42 U .S.C. 

§ 14141 ("Section 14141 "). 

21. The declaratory and injunctive relief sought by the United States is authorized by 

42 U.S.C. § 14141(b) and 28 U.S.C. §§ 2201 and 2202. 

22. Venue is proper in the Middle District of North Carolina pursuant to 28 U.S.c. 

§ 1391(b). ACSO is located in the Middle District of North Carolina, and 

Defendant J olmson conducts nearly all of his official business within the DistJict. 

In addition, virtually all of the events, actions, or omissions giving rise to this 

claim occurred in the Middle District of North Carolina. 

V. FACTUAL ALLEGATIONS 

23. From at least JanualY 2007 to the present, ACSO has engaged in a pattern or 

practice of intentionally disCliminatory policing activities against Latinos that 

stems directly from the statements, directives, and actions of Defendant JolUlson 

and other ACSO leadership. 

24. Defendant Jolmson directs ACSO deputies to target Latinos when conducting 

enforcement activities. He has explicitly instructed his staff to "go out there and 

6 

Case 1:12-cv-01349 Document 1 Filed 12/20/12 Paae 6 of 24 
136 

catch me some Mexicans," and directed deputies to "arrest Hispanics" - but not 

others - for minor infractions. Fmther, Defendant Johnson fosters a culture of 

bias against Latinos at ACSO through these explicitly discriminatory commands 

and his use of racial epithets. As a result, deputies understand that ACSO 

leadership not only tolerates, but encourages, their discriminatory conduct. 

25. ACSO's discriminatory conduct includes targeting Latinos for traffic stops; 

stopping Latino drivers without reasonable suspicion; atTesting Latinos for minor 

infractions while letting others go with a citation or warning; disproportionately 

locating vehicle checkpoints in Latino neighborhoods; stopping Latinos at 

checkpoints while letting others pass unI1indered; and dispropOitionately refening 

Latinos for immigration investigations at the AI31llance County Jail. 

26. ACSO's discriminatory activities violate the constitutionalatld statutOlY rights of 

Latinos in AI31llance County and erode the trust in law enforcement that is central 

to effective policing. 

A. Defendant Johnson Orders Law Enforcement Activities Targeting 

Latinos 

27. Defendant Jolmson has repeatedly urged ACSO deputies to target Latinos. For 

example: 

a. In a staff meeting after the implementation of the 2S7(g) MOA in J atlUaty 

2007, Defendant Johnson yelled "'bring me some Mexicans!" while banging 

his fists on the table. 

7 

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137 

b. Defendant separately instructed two members of ACSO's command staffto 

"go out there and catch me some Mexicans." 

c. When Defendant speaks to traffic and patrol deputies he frequently asks 

them, "You all getting Hispanics for driver's license revoked, NOL [no 

operator's license]"7 

d. In December 2008, Defendant instructed his deputies to "put heat on" 

predominantly Latino neighborhoods by conducting vehicle checkpoints, 

"knock and talk" operations, and heightened traffic enforcement. 

28. In addition to encouraging ACSO deputies to target Latinos generally, Defendant 

Johnson has also instructed deputies to target Latinos in the context of discussing 

specific enforcement operations. For example: 

a. After ACSO gained 287(g) authority, Defendant instructed the deputies in 

charge of selecting checkpoint locations to focus on Alamance County's 

Latino population. 

b. During a December 2008 meeting discussing an upcoming operation at the 

overwhelmingly Latino Calloway Drive mobile home park, Defendant 

encouraged his subordinates to get tough on the park's Latino residents, 

saying, "Hell comes to these places and the devil gonna come with him. 

And you folks gonna be the devil." 

29. Defendant Johnson also directs Iris deputies to an-est Latinos - but not non-Latinos 

- for minor infractions during vehicle checkpoints and traffic stops. For example: 

8 

Case 1:12-cv-01349 Document 1 Filed 12/20/12 Paae 8 of 24 
138 

a. Defendant directed ACSO's traffic enforcement unit to "arrest Hispanics" 

during checkpoints that he ordered at the Seamstress mobile home park. 

Defendant further instructed participating deputies that "if anybody stopped 

is Hispanic, don't write a citation, bring them to jail." 

b. At a checkpoint in Green Level on or about June 2011, Defendant 

instructed the deputies conducting the checkpoint to "arrest any Mexicans if 

they don't have licenses." 

c. During a 2008 ACSO staff meeting, Defendant likewise directed the 

assembled supervisors to tell their officers, "If you stop a Mexican, don't 

write a citation, atTest him." 

30. Defendant Johnson likewise directs his deputies to target predominantly Latino 

neighborhoods for increased enforcement. Defendant Jolmson often voices his 

assumption that Latinos are responsible for Alatllance County's drug trade despite 

evidence that ACSO's rate of anests for drug crimes has declined as the County's 

Latino population has increased. Defendant Jolmson orders checkpoints and other 

enforcement activities in predominantly Latino areas under the pretext of drug 

interdiction. At a December 2008 staff meeting Defendatlt Jolmson stated, 

"We've had a big drop in the Hispatlic population, but we still got a lot dealing 

dope and we still got a lot of citizens in this country dealing dope with them." 

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B. Defendant Johnson and Other ACSO Personnel Make and Tolerate 

Statements Evidencing Bias 

31. Defendant Johnson fosters ACSO's culture of disregard for Latinos by making 

derogatOly remarks about Latinos, including: 

a. On or about April 2007, while describing Latino immigrants to a reporter, 

Defendant asserted that, "[t]heir values are a lot different - their morals -

than what we have here. In Mexico, there's nothing wrong with having sex 

with a 12-, l3-year old girl .. They do a lot of drinking down in 

Mexico." 

b. While participating in a vehicle checkpoint on or about June or July 2011, 

Defendant implored two deputies to "go out there and get me some of those 

taco eaters." 

c. On several occasions, Defendant has instructed deputies to "alTest 

Mexicans" or "bling me Mexicans." 

d. Defendant's remarks frequently assume, without any factual basis, that all 

Latinos in North Carolina arrived illegally. 

e. Defendant complained about Latino migration to N Olth Carolina dming a 

speech at a national security conference on or about January 2009. In the 

speech, Defendant lamented the increased Latino presence in North 

Carolina's workforce and public schools and various increases in public 

expenditmes to Latinos, including health services, cOlTections, and the need 

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for "Hispanic interpreters." He concluded that "taxpayers are losing." 

32. In addition, Defendant Iolmson tolerates racially insensitive remarks by other 

members of ACSO's command stan: deputies, and correctional officers. For 

example, Defendant Johnson did not discipline ACSO Chief Deputy Tim Bl;tt for 

wearing a shirt to ACSO's office that stated, "it's a White thing, you wouldn't 

understand." 

33 The anti-Latino sentiments expressed by ACSO leadership encourage 

discrimination by other ACSO personnel. Indeed. racially or ethnically insensitive 

comments are commonly made by ACSO deputies. For example: 

a. During a traffic stop on or about April 2010, an ACSO deputy told a Latina 

passenger, "Mexican go home!" 

b. On or about May 2010, after a Latina driver provided her valid North 

Carolina driver's license to an ACSO deputy during a traffic stop, the 

deputy retOlied, "you stole it-the woman in the picture is pretty and 

you're ugly. We're going to deport you." 

c. While responding to a call for service in the predominantly Latino Rocky 

Top mobile home park during the summer of2011, an ACSO deputy 

tllreatened to deport tile parents of children who had broken a neighbor's 

window, asserting that the parents had until the following day to figure out 

who would pay to fix the window, "or we're going to come back and deport 

you all." When the deputy returned a few days later and encountered one 

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of the parents, the deputy told him, "it's a good thing you fixed the 

window, or you'd be in Mexico." 

d. ACSO detention officers use the terms "wetback" and "spic" to refer to 

Latino individuals in their custody. 

C. ACSO Deputies Target Latinos for Traffic Stops 

34. ACSO deputies routinely target Latinos for traffic stops. As a result, Latino 

drivers are significantly more likely to be subjected to traffic stops than similarly 

situated non-Latino drivers. 

35. A 2012 statistical analysis commissioned by DOJ establishes tllat ACSO deputies 

routinely treat Latino drivers differently from similarly situated non-Latino 

drivers. The study assessed the incidence of traffic violations by Latino and nonLatino drivers and compared tllOse data to the rates at which ACSO deputies stop 

Latino and non-Latino traffic violators. 

36. For instance, the study analyzed traffic patterns along three major Alamance 

County highways, selected based on the high number of citations ACSO issued on 

those roads. The study found that ACSO deputies disproportionately stopped 

Latino drivers on all three roads: 

a. Along one highway, ACSO deputies were approximately four times more 

likely to stop Latino drivers as similarly situated non-Latino drivers. 

b. Along a second highway, ACSO deputies were approximately nine times 

more likely to stop Latino drivers than similarly situated non-Latino 

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drivers. 

c. Along a third highway, ACSO deputies were approximately ten times more 

likely to stop Latino drivers than similarly situated non-Latino drivers. 

D. ACSO's Deliberate Targeting of Latinos for Traffic Stops 

Frequently Results in Deputies Stopping Latinos Without 

Reasonable Suspicion 

37. Individual incidents also speak to ACSO's deliberate targeting of Latino drivers 

for traffic stops, and indicate that ACSO' s focus on stopping Latino drivers results 

in stops lacking reasonable suspicion. Examples of such incidents include: 

a. On or about August 2011, an ACSO deputy followed a Latino man on 

Highway 70 for four to five minutes before activating his lights and pulling 

him over. The deputy provided no reason for the stop, cited the man for 

driving without a license - but no violation observable prior to the stop -

and arrested him. 

b. On or about August 2011, an ACSO deputy followed a Latino man for five 

minutes along Highway 54 before pulling him over. The officer provided 

no reason for the stop. cited the driver for driving without a license - but no 

previously observable violation - and anested him. 

c. On or about July 2011, an ACSO deputy followed a Latino man for roughly 

one mile until the man pulled into a gas station to wait for his wife to meet 

him after she got off work. When the wife anived and began to dllve the 

couple home, the deputy pulled them over. The deputy approached the 

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passenger side window and asked the husband for his driver's license. The 

deputy stated that the husband had been speeding and conducted a 

breathalyzer test. The deputy arrested the husband for driving without a 

license and driving under the influence, although his blood alcohol level 

was below the North Carolina legal limit. When the wife protested that her 

husband had not been driving when they were pulled over, the deputy 

arrested her and charged her with chiving without a license and resisting an 

officer. The prosecutors ultimately dismissed the charges for driving under 

the influence and resisting an officer. 

d. On or about July 2010, an ACSO deputy followed two Mexican women 

visiting Alamance County on vacation. The women were following a car 

driven by ftiends of theirs who were white. After the deputy followed the 

Mexican women for eight to ten minutes, he turned on his lights and pulled 

them over for "driving too slowly." When the driver provided the deputy 

with her Mexican ch'iver's license and passport, the deputy told her they 

"looked fake," and asked if she had a North Carolina license. After 

speaking with the white chiver of the car the women had been following, 

the officer eventually let the women go without giving them any type of 

citation. 

e. On or about April 2009, an ACSO deputy stopped a Latino man driving in 

Green Level without probable cause or reasonable suspicion. When the 

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man showed the deputy his driver's license, the deputy asked for "his 

documents," meaning his inunigration docmnents. When the driver asked 

why he had been stopped, the deputy refused to answer. The deputy also 

refused to provide his name or badge number. The Latino man was 

lawfully present in the United States. 

Eo ACSO Deputies Arrest Latinos for Committing Minor Traffic 

Infractions, While Issuing Citations or Warnings to Similarly 

Situated Non-Latinos 

38. ACSO officers treat Latinos differently than similarly situated non-Latinos when 

detennining tlle appropriate response to minor traffic offenses. 

39. ACSO deputies are far more likely to atTest Latino chivers tllatl non-Latino drivers 

for minor traffic violations. Conversely, non-Latino drivers are far more likely 

than Latino chivers to receive citations or wamings for such violations. 

40. For instance, ACSO deputies are more likely to arrest Latinos than non-Latinos for 

being unable to produce a valid driver's license. 

F. ACSO Deputies Stop Latinos at Vehicle Checkpoints While 

Allowing Similarly Situated Non-Latino Drivers To Pass Through 

41. ACSO's selection ofvehic1es to stop at checkpoints discriminates against Latinos. 

ACSO deputies frequently wave non-Latino drivers through checkpoints while 

stopping cars driven by Latinos. 

42. On several occasions, drivers have observed ACSO deputies waving white drivers 

through checkpoints while stopping Latino drivers and asking them to provide 

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identification. 

43. For example, during a 2009 checkpoint outside the Rocky Top mobile home park, 

an ACSO officer waved a white man through a checkpoint. When the man started 

to show his driver's license, the ACSO deputy indicated that it was unnecessary, 

saying, "no, I'm here to get us some." The driver understood the deputy to be 

referring to the Latino residents of Rocky Top. 

G. ACSO Deputies Disproportionately Locate Vehicle Checkpoints in 

Predominantly Latino Neighborhoods 

44. For at least the past five years, ACSO deputies have disproportionately clustered 

checkpoint activity around predominantly Latino neighborhoods. An analysis of 

documented checkpoints illustrates this pattenL Further, this analysis IDlderstates 

the magnitude of the checkpoints' discriminatOlY focus and effect because ACSO 

deputies routinely fail to record checkpoints located near Latino neighborhoods. 

45. ACSO deputies frequently locate checkpoints at the entrance of mobile home 

parks populated overwhehningly by Latino residents, such as Rocky Top, 

Seamstress, Oliver Rent, Calloway Drive, and Clover Creek. 

46. During these checkpoints, residents of the affected mobile home parks are forced 

to endure police checks whenever leaving or entering their residential 

neighborhood. 

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H. ACSO Officers Automatically Refer Latino Arrestees to ICE 

Investigators at the Alamance County Jail, While Not Referring 

Similarly Situated Non-Latinos 

47. For at least the last five years, ACSO officers have targeted Latinos booked into 

the Alamance County Jail for heightened immigration enforcement 

48. Shortly after entering into the 287(g) MOA in 2007, ACSO changed its booking 

procedures to target Latinos for immigration questioning. 

49. After entering the MOA, ACSO officers began asking anestees about their place 

of birth and citizenship. After questioning, if an ACSO officer suspects that an 

arrestee is not a citizen, the officer escorts the alTestee to a 287(g) or ICE officer at 

the Jail to verify the arrestee's immigration status, even if the anestee has posted 

baiL 

50. ACSO officers typically base their decisions on whether to refer arrestees to 

287(g) or ICE officers on their assumptions about the nationality or ethnicity of 

the anestees. ACSO officers refer for ICE questioning all alTestees who "appear" 

Latino, regardless of how the anestees respond to the citizenship question on the 

propeliy fonn. A fonner correctional officer explained that "if you [a]re Mexican 

or look[] Mexican or even if you [a]re Puerto Rican, you[] go to ICE." 

51. Conversely, atTestees who appeat· "AmellCatl" are not refelTed to ICE, even if they 

fail to present identification. 

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I. ACSO's Deficient Policies, Training, and Oversight Procedures 

Facilitate Discriminatory Enforcement Activities Against Latinos 

52. ACSO has knowingly failed to implement adequate policies, procedures, training, 

and accoIDltability mechanisms to prevent lIlllawful discrimination against 

Latinos, and has affirmatively changed certain policies to facilitate its 

discriminatOlY policing activities. 

53. ACSO has failed to collect and/or analyze data necessary to identify and correct 

discriminatory practices. ACSO lacks an effective system to track and analyze its 

enforcement operations, including vehicle checkpoints, traffic stops, citations, and 

arrests. These data are collected and analyzed by many other law enforcement 

agencies as a means of preventing discriminatOlY policing. 

54. ACSO is fully aware of the risk of discriminatOlY policing created by its practices 

of targeting Latinos, but has failed to take measures to prevent discriminatory 

treatment of Latinos. 

Inadequate Oversight and Analysis of Policing Activities 

55. ACSO's lack of analysis of its policing activities evidences its intent to 

discriminate against Latinos. 

56. Despite focusing its enfoTcement operations heavily on Alamance County's Latino 

population, ACSO does almost nothing to monitor or analyze its own policing 

operations to prevent discriminatory policing practices. 

57. Even after DOJ informed ACSO in June 2010 that it was investigating ACSO's 

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discriminatory policing practices, ACSO took no steps to train, assess, or monitor 

its deputies to ensme that they were not engaging in discritninatOlY activities. 

58. ACSO deputies who depart from or ignore ACSO's limited reporting requirements 

for conducting vehicle checkpoints suffer no repercussions. As a result, ACSO 

deputies seeking to gain favor with Defendant Johnson by targeting Latinos 

establish their own checkpoints in Latino neighborhoods without receiving prior 

approval from a supervisor and without creating any record of the checkpoitlt. 

59. ACSO likewise does not consistently gather and analyze traffic stop data, even 

though North Carolitla law requires such collection. Indeed, ACSO has admitted 

that at least for several years it "grossly undeneport[ ed]" the nmnber of traffic 

stops its deputies made. 

60. The lack of vehicle checkpoint and traffic stop data and analysis ensmes that 

ACSO is unable to properly monitor its deputies' traffic enforcement activity or 

identify deputies or units engaged in profilmg Latinos. 

Lack of Trainitlg and Oversight for the Vice Unit 

61. The lack of guidance and oversight of the activities of ACSO's Vice Unitformerly known as the "Special Operations" unit -likewise shows ACSO's intent 

to discriminate agaitlst LatitlOs. 

62. The Vice Unit consists of roughly a half dozen officers loyal to Defendant 

Johnson who cany out operations he priOlitizes, often focuSitlg on traffic stops and 

drug enforcement operations in predominantly Latino neighborhoods. At 

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Defendant Johnson's direction, the Vice Unit fi'equently targets predominately 

Latino mobile home parks such as Rocky Top, Seamstress, Calloway Drive, and 

Oliver Rent with road blocks, vehicle stops, raids, and increased patrols. 

63. The Vice Unit's specialized drug enforcement activities, its focus on minority 

communities, and its frequent use of pretextual traffic stops place it at high risk of 

engaging in discriminatory conduct. 

64. A law enforcement agency would ordinarily require that a unit engaged in 

activities with these risks receive more supervision and meaningful policy 

guidance. Instead, Vice Unit officers operate with less oversight than other ACSO 

officers, and without specific written guidance. 

65. Defendant Johnson typically selects Vice Unit officers based on personal loyalty 

and without an open interview process. 

66. The officers receive no formal training specific to their responsibilities as Vice 

Unit members. Nor are Vice Unit officers provided with any guidance regarding 

biased policing other than a general prohibition against discrimination. 

67. These deficiencies demonstrate that Defendant Johnson and ACSO leadership 

consciously ignore the risk of biased policing by Vice Unit members. 

VI. CLAIMS FOR RELIEF 

FIRST CLAIM FOR RELIEF 

DEFENDANT'S LAW ENFORCEMENT ACTIVITIES VIOLATE 

SECTION 14141 AND THE FOURTEENTH AMENDMENT 

68. The United States re-alleges and incorporates by reference the allegations set fOlih 

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in paragraphs 1 - 67 above. 

69. The United States is authOlized wlder 42 U.S.c. § 14141(b) to seek declaratOly 

and equitable relief to eliminate a pattern or practice of law enforcement officer 

conduct that deprives persons of rights, privileges, or immunities secured or 

protected by the Constitution or laws of the United States. 

70. Here, Defendant and his agents, including ACSO deputies, have utilized a variety 

oflaw enforcement practices to intentionally discriminate against Latino persons 

in Alamance County on the basis of their ethnicity. 

71. Defendant's discriminatOlY law enforcement practices and those of his agents 

constitute a pattem or practice of depliving persons of rights protected by the 

Equal Protection Clause of the Fourteenth Amendment of the United States 

Constitution, in violation of 42 U.S.C. § 14141(a). 

SECOND CLAIM FOR RELIEF 

DEFENDANT'S LAW ENFORCEMENT ACTIVITIES VIOLATE 

SECTION 14141 AND THE FOURTH AMENDMENT 

73. The United States re-alleges and incorporates by reference the allegations set 

f0l1h in paragraphs 1 - 67 above. 

74. The United States is authOlized under 42 U.S.c. § 14141(b) to seek declaratOly 

and equitable relief to eliminate a pattem or practice of law enforcement officer 

conduct that deprives persons of rights, privileges, or immunities secured or 

protected by the Constitution or laws of the United States. 

75. Defendant and his agents, including ACSO deputies, have unreasonably seized 

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numerous persons in Alamance County. These unreasonable seizures include 

seizures made without probable cause or reasonable suspicion. 

76. Moreover, Defendant and his agents engage in a pattern of making pretextual 

traffic stops motivated by the ethnicity of the driver rather than a traffic infraction. 

77. The unreasonable seizures made by Defendant and his agents constitute a pattern 

or practice by law enforcement officers that deprives persons of their rights under 

the Fourth and Fourteenth Amendments, in violation of 42 U.S.C. § l4l4l(a). 

PRAYER FOR RELIEF 

78. WHEREFORE, the United States prays that the Comt: 

79. Declare that Defendant, his deputies, agents, and employees have engaged in a 

pattern or practice of conduct that deprives persons of rights, privileges, or 

immmlities secured or protected by the Constitution or laws of the United States, 

in violation of 42 U.S.c. ~ l4l4l(a); 

80. Order Defendant, his deputies. agents, and employees to refrain from engaging in 

any of the predicate acts fonning the basis of the pattem or practice of unlawful 

conduct described herein; 

8l. Order Defendant, his deputies, agents, and employees to adopt and implement 

policies and procedures to remedy the pattem or practice of unlawful conduct 

described herein; 

82. Order Defendant to adopt systems that identifY and conect conduct that deprives 

persons of rights, privileges, or immunities secured or protected by the 

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Constitution or laws of the United States; and 

83. Order such other relief as the interests of justice may require. 

DATED: December 20.2012 

THOMAS E. PEREZ 

Assistant Attomey General 

Civil Rights Division 

ROY L. AUSTIN, JR. 

Deputy Assistant Attorney General 

Civil Rights Division 

JONATHAN M. SMITH 

Chief 

Special Litigation Section 

Civil Rights Division 

A VNER M. SHAPIRO 

DC Bar Number: 452475 

Special Counsel 

Special Litigation Section 

Civil Rights Division 

/s/ Samantha K. Trepe1 

SAMANTHA K. TREPEL 

DC Bar Number: 992377 

/s/ Michael J. Songer 

MICHAEL J. SONGER 

DC Bar Number: 975029 

Attorneys 

United States Department of Justice 

Civil Rights Division 

Special Litigation Section 

950 Peillsylvania Avenue, N.W. 

Washirtgton, DC 20530 

Tel: (202) 514-6255 

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153 

Fax: (202) 514-4883 

samantha.trepel@usdoj.gov 

michael.sollger@usdoj.gov 

Attorneys for the United States 

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Ms. LOFGREN. Great. 

You know, I just want to say that certainly I have a very close 

relationship with the prosecutors in my county. I have tremendous 

respect for them, as well as the law enforcement agents. And I 

think it’s incorrect to suggest that because immigration law is 

enormously complex and maybe not an area of expertise for my 

friends in the DA’s office, that somehow that insults them. As a 

matter of fact, I think my friend the DA in Santa Clara County 

would agree that he is not an expert on immigration law. 

So I guess I’d like to ask you this, Sheriff Babeu. You took offense, and I meant none. Let me ask you this question. If you found 

someone who was born on November 15, 1986, whose mother was 

a United States citizen, would that person have derivative citizenship if she had been in the U.S. for 3 years prior to that child’s 

birth? 

Sheriff BABEU. Through the chair, Ms. Lofgren, quite frankly 

right now we don’t do anything in regards to that. And if we have 

13 deputies who get enhanced training, they actually come back 

east, and those would be the only deputies that would. 

Ms. LOFGREN. Well, I’ll tell you, the manual for local law enforcement is about that thick—— 

Sheriff BABEU. Sure. 

Ms. LOFGREN [continuing]. And the immigration code is this 

thick. 

Sheriff BABEU. Certainly. 

Ms. LOFGREN. And I’m not insulting you. I value what law enforcement does. I used to teach immigration law, and there are 

many nuances that are important and critical on whether someone 

is a U.S. citizen or not. In fact, you have to be 5 years in the U.S. 

prior to the child’s birth, at least 2 of which have to have been before the age of 14. And it can include presence in not only the 

United States, but also possessions. And those are things about 

whether you’re an American, not an illegal person. 

Sheriff BABEU. And I can answer that. We actually have numerous situations because when, through policy, through ICE, and 

when the President came out and said anybody who has been here 

for 5 uninterrupted years or longer, they shall be allowed to stay 

here. So what we did, our deputies—— 

Ms. LOFGREN. If I can interrupt, because I want to ask one other 

question. It’s not about whether you can follow the policy that the 

President outlines or that ICE outlines. I don’t doubt that. 

Sheriff BABEU. Sure. 

Ms. LOFGREN. And I also don’t doubt that you’re good at arresting people who are drug dealers. I mean, great. I want you to do 

that. 

Sheriff BABEU. With that situation, we would do nothing. We 

wouldn’t even ask the question. 

Ms. LOFGREN. But there have been—and this goes to my question I guess, Ms. Martinez. You, in your written testimony, outlined 

instances where American citizens have been deported, which is a 

travesty. I wonder if you can—you didn’t have an opportunity to go 

through that. But we have come across numerous instances where 

mistakes have been made, including in LA County, where Amer-
155 

ican citizens were apprehended and then deported, even though 

they were Americans from birth. Can you address that issue? 

Ms. MARTINEZ-DE-CASTRO. Thank you. Indeed, there are several 

of those cases, particularly that were documented in the recent 

findings about Maricopa County, in terms of the discrimination. 

And in terms of people being deported, there’s a variety of reasons. 

Somebody doesn’t answer the right question and they end up being 

categorized as somebody who is deportable. It has happened to U.S. 

citizens. I know it is extremely hard to fathom. But it does happen. 

And part of the reason is that the toxic nature of our immigration debate—and that’s why we are desperately in need of fixing 

this—has created an environment where there’s a lot of people— 

American citizens and legal permanent residents—who are immediately categorized as ‘‘illegal.’’ 

Ms. LOFGREN. I want to be respectful of the time. Let me just 

say thank you. 

And to the parents who have lost children, what happened to you 

shouldn’t happen to anyone. That is not an argument. Certainly we 

don’t want people who have done nothing wrong to be stigmatized. 

But our hearts go out to you. And I think there is really unanimity 

about going after the criminals here in this room. 

I yield back to you, Mr. Chairman. 

Mr. GOWDY. Thank the gentlelady from California. 

The Chair would now recognize the gentleman from Pennsylvania, former United States Attorney Mr. Marino. 

Mr. MARINO. Thank you, Chairman. I wish my friend Luis 

Gutierrez was here because I agree with him on many of the 

issues. I don’t agree with him where he categorizes this side by 

saying we want all the Hispanics and illegals just moved out of the 

country for no reason at all. We’re talking about the people who 

caused the death of these—this father and this mother here that 

should be moved out of this country. And given the fact that they 

had criminal records, if they were sent and deported back or put 

in jail when they were supposed to be and not released, their children would be alive today. And so—— 

Mr. CONYERS. Would the gentleman yield for just a moment? 

I agree with you. But if there were trials—and in one case, there 

may have been, and in another there wasn’t—that’s for the court 

to determine. 

Mr. MARINO. Reclaiming my time, sir. 

As a prosecutor, I know what the court should determine. But 

given the circumstances and based on immigration law, those individuals should have been at least detained and sent back eventually. So I am not saying they didn’t deserve a trial. That’s not the 

issue. 

Ms. Martinez, you very eloquently spoke to the fact of what we 

need to do. But I think you did not speak clearly enough on it’s 

going to take enforcement. You did say that a large majority of 

Americans want immigration fixed. I want it fixed also. And I 

know we’re not going to send back 11 million people, and I’ll be 

standing at the front of the line to argue that. 

But the question wasn’t asked that way. If you would ask those 

people, should they all get amnesty, you would see those numbers 

significantly decrease, because I’m not only hearing it from my dis-
156 

trict in Pennsylvania, I am hearing it from people across the country. We need to deal with this but not total amnesty. 

And there was a statement about enforcement levels of this Administration have increased. That’s not true. I’m disappointed in 

this Administration and I’m also disappointed in the Bush administration for not addressing this issue in the previous Administration, in the Bush administration. What ICE has been doing, what 

Homeland has been doing is those individuals sent back at the border are considered to be individuals that were here and sent back 

and that’s how they inflate the numbers. 

Ms. Tumlin, I am offended by your statement. I am offended because, as the Chairman said and my friend, my assistant U.S. attorney, when I was a district attorney in Lycoming County, Pennsylvania, for 10 years, the Federal Government, ICE, Secret Service, FBI, came to local law enforcement and said, help us solve 

these crimes, no matter if the criminals were dealing drugs or no 

matter if they were illegals. Because I agree with the statement 

that was made, that all law enforcement is grassroots. 

And then when I became a United States attorney, I went right 

back and I was the United States attorney for 7 years, I went right 

back to those district attorneys and those sheriffs and those police 

officers and said, help me enforce the laws of the Federal Government. And it was very helpful because most of my cases were 

solved by those people there. 

And I want to ask you a question. You certainly pick apart law 

enforcement in your statement. You say that locals should not be— 

have the authority and the power to do what they have been doing 

over the past several years except when this Administration 

stopped it. That’s the backbone of law enforcement. The Federal 

Government wouldn’t operate without these individuals. And I take 

insult to that. 

And as far as the individual driving mom to the store and getting 

milk and should that person be prosecuted, if they’re here illegally, 

if they know he shouldn’t be driving and he doesn’t have a license, 

it’s a violation of the law. So why would you say that these people 

aren’t qualified when the Federal Government relies on them to enforce the law? 

Ms. TUMLIN. I appreciate the Representative’s question. And I 

think as a prosecutor, of course you know that in that example the 

prosecution that the State of Georgia was talking about was not for 

driving without a license. They were talking about the prosecution 

under their own law for harboring and in this case for transporting 

an undocumented immigrant. 

Mr. MARINO. It’s still illegal. So you do not think that is a good 

law. But the law that they’re enforcing for immigration or should 

be enforcing is a bad law? 

And let me ask you this question. I commend you for your cause 

and what you do and for the work that you are trying to do for people that are here illegally. But have you ever taken the time to talk 

to people like Ms. Durden and Mr. Shaw about what they lost, 

about how their rights were violated, about their child, their constitutional rights were violated, and they’re not here today to enjoy 

their children? You seem to be jumping on the fact that we want 
157 

to prosecute every illegal immigrant that’s here and send them 

right back regardless of any cause. 

Let me tell you something. That’s not the case. I’ve been a prosecutor for most of my life and the rule of law is the rule of law. 

And you can’t sit there and pick and choose what laws you want 

enforced and who should enforce them. 

Ms. TUMLIN. So what I’d like to say briefly, if I may, to the question, because it is—I think it is an incendiary remark. And what 

I would say about the absolutely unspeakable tragedies that we 

heard about today—— 

Mr. MARINO. Well, let me interrupt you, because I didn’t hear 

you mention one word about that in your opening statement. Ms. 

Martinez did, but I didn’t hear you do it in your opening statement. 

And you’re doing it because I’m bringing it up now. And I think 

you need to step back, reevaluate your cause, and take into consideration the victims and what these people are going through. 

And I yield back my time. I see it has expired. 

Mr. GOWDY. Thank the gentleman from Pennsylvania. 

The Chair would now recognize the gentleman from Georgia, Mr. 

Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mixed feelings. Mr. Shaw, Ms. Durden, I am sorry for your loss. 

It was 30 years ago—excuse me, 40 years ago, on May 29, 1973, 

that my sister was killed, murdered by a Black guy. And I chose 

not to be angry or unforgiving about that to this day. And I just 

wonder why is it that you two have been brought here to share 

your pain about your loss with the Nation? Were you called because we wanted to arouse passions and prejudices against people 

from—or against illegal immigrants? Is it because we wanted people to think that all illegal immigrants are from Mexico, they’re 

Hispanic? Is it because we wanted everyone to feel that all immigrants, illegal immigrants, are criminals or drunk drivers or somehow the scourge of our community? Is it that why you all were 

brought here? I can’t think of any reason why other than that, that 

you all are here. 

Ms. DURDEN. Can I answer that? 

Mr. JOHNSON. And I think that this kind of passion and this kind 

of emotion really is ill placed for our consideration of legislation before us. And I appreciate the law enforcement personnel who put 

their lives on the line every day. They are asked to do more increasingly with less, and they are frustrated because they have a 

job to do. And if the Federal Government can’t get its act together, 

which it has not done, then it falls on local law enforcement. And 

it falls on local law enforcement prosecution also, it falls on our 

jails, the citizens are paying for that. 

But there is a deeper reason behind this that leads to our frustration with each other, and we end up pointing fingers at each 

other while there is money making going on. That money making, 

ladies and gentlemen, is from the profits of incarceration. And so 

illegal immigrants can be a source of revenue for companies like 

private prison, for-profit private prison companies, skyrocketing 

stock value on Wall Streets. Corrections Corporation of America 

CEO Damon Hininger, back in the week of February 20th on a conference call to investors, assuring them that incarceration rates 
158 

will remain high and immigration detention will be a strong source 

of business for the foreseeable future. 

Do you all understand how public policy can result in dollars in 

the pocket of business interest? And so what’s happening is we 

have turned our attention away from those who are making the 

money and we’re blaming each other for everything that ails us. 

And it’s really time for this game to end. The private prison corporations are members of ALEC, the American Legislative Exchange Council, that drafts bills State by State and introduced here 

in the Federal Government, that result in these kinds of growth opportunities for business. It’s wrong, its immoral, and it’s hurting, 

it’s killing of America. 

Mr. GOODLATTE [presiding]. The time of the gentleman has expired. 

The Chair recognizes the gentleman from Idaho, Mr. Labrador, 

for 5 minutes. 

Mr. LABRADOR. Mr. Chairman, I just wonder if before I have my 

time, if Mr. Shaw and Ms. Durden can actually answer the question, because that’s one of the most ridiculous presentations I have 

ever—— 

Mr. JOHNSON. Well, Mr. Labrador—— 

Mr. LABRADOR. I’m sorry, but I think—— 

Mr. JOHNSON. Mr. Labrador, I’m not going to stoop to the posture 

of—— 

Mr. LABRADOR. Your time has expired. 

Mr. JOHNSON. But you cannot come here and insult another 

Member. I think that’s against the rules. 

Mr. LABRADOR. I just believe that if you just called them out for 

coming out here and you said that they were—— 

Mr. JOHNSON. If you have a question that you want to ask them, 

that’s fine. 

Mr. LABRADOR. You know, sir, I will do it sir in the way that I 

will to do it. But I just think it’s insulting—— 

Mr. JOHNSON. But don’t get them to answer my question and you 

not have—— 

Mr. GOODLATTE. The gentlemen will both suspend. 

Mr. JOHNSON [continuing]. And you not use your time. 

Mr. GOODLATTE. The gentlemen will both suspend. 

Mr. Shaw, Ms. Durden, if you care to respond to the last statement/question made by the gentleman from Georgia, we will allow 

to you do so. 

Mr. JOHNSON. And, Mr. Chairman, if I might, I welcome their response, I just happened to run out of time. But because we are 

sticking to the time I don’t want to give Mr. Labrador 2 minutes 

of free time. 

Mr. GOODLATTE. No, we’re going to give Mr. Shaw and Ms. 

Durden the time, and then we’ll go to Mr. Labrador. But—— 

Mr. JOHNSON. Oh, okay, well, then, we can do it like that. 

Mr. GOODLATTE. I thought you were completing a statement. Apparently you were completing a question. Either way, we’ll let them 

comment on it. 

Mr. JOHNSON. That’ll be fine. 

Ms. DURDEN. I would love to answer your question. We weren’t 

brought here for any sympathy or anything. My reason for being 
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here is to put a face to this. I don’t think immigration talks about 

all the lady going to church and somebody says she looks like Hispanic so we’re going to check her immigration status. It puts, I 

think, a face on it with my son that brought a lot of good things 

to the community he lived in. He took care of me, he took care of 

his friends and neighbors and everybody. And he was wiped out because the guy who killed him in 2008 wasn’t deported, he wasn’t 

deported after his first DUI or his second DUI, a career criminal. 

It’s almost like if I sneak into a restaurant and I act a fool and 

they ask me to leave, oh, no. Or I just come back and they say, no, 

you’re not allowed here anymore, we didn’t invite you back here, 

you did something wrong, and then I go back and they say, well, 

okay you can stay until you tear up the place. And when it’s all 

demolished we’ll deal with you. That’s how I feel. 

So for you to say that we were—you know, you questioned why 

we were brought here, to put a face to it. When I get married to 

a wonderful man that supported me, my son can’t walk me down 

the aisle. I will never be a grandmother or a mother-in-law. So 

that’s why I’m here. 

Mr. GOODLATTE. Thank you. 

Mr. Shaw, did you choose to say anything? 

Mr. SHAW. Yeah, basically I didn’t like the way you did that myself, you know, because you’re almost putting like no value on my 

son, because when you said your sister was killed by a Black man, 

like that made everything that we have to say null and void, because it was a Black man and like we’re picking on Latinos. 

But what you have to understand is that our kids were here, 

they were living here, and they were murdered by someone illegally in the country. And I came here to let people know that I 

don’t have to say that everybody here is 11 million people or more 

aren’t criminals. I mean, I’m here to say that you have people here 

in the country illegally that are criminals. You have people that 

were brought here by no fault of their own. My son was murdered 

by someone that was brought here at 4 years old. And just because 

someone was brought here by no fault of their own you guys act 

like that gives them some sort of cart blanche to do whatever they 

want to, you know, and that’s not fair. 

If you’re here illegally from day one, you cross that border, everything else is out the door, it’s illegal. And for you to act like if you 

come into our country it’s not a crime, that’s insulting to all Americans. And to say that I came here for sympathy, you know, I don’t 

need sympathy. I think about my son 24 hours a day and I’m sure 

you feel the same about your sister. And for you to try to make it 

seem like I was just brought here like some puppet to make people 

cry or make people feel sorry for me, that’s not fair, that’s not fair, 

because we love our kids. 

Like she was saying, my son wasn’t bothering anybody. He was 

walking down the street, coming home from the mall. I’m sure like 

your kids probably do, go to the mall and enjoy life. My son wasn’t 

bothering anybody, he was playing football, he wasn’t into gangs, 

no gang databases, he’d never been arrested, never been suspended 

from school. He was three times MVP, player of the year, he was 

running track, he was getting ready to get a shot at going to the 

Olympics. 
160 

You know, so for you to make it seem like our families aren’t important and we’re brought here like they brought us out here like 

we’re puppets, you know, to make fun of us, that’s insulting to me, 

you know. If you had a nonchalant attitude it’s not fair. 

The same way with the attorney and the other lady on the end, 

same way, they never talk about the crimes and the criminals and 

the cemeteries full of dead people, you know. And they act like just 

because they’re here to work, that that’s just—that’s some kind of 

honor. That’s not an honor, you broke the law to come into this 

country. You brought your kids over here. That’s equivalent to 

human trafficking. You brought an infant that had no control what 

they were doing to a foreign country illegally and then raised him 

like that, and then you want us to feel like it’s our fault because 

their mom and dad are just here to work. Where is the criminal, 

where is the criminality for the—— 

Mr. GOODLATTE. Thank you, Mr. Shaw. 

Mr. JOHNSON. Mr. Chairman, if I might offer my apology to both 

witnesses if I offended you. It was not my intent to do that. And 

certainly I’m a Black guy. And I think the point that I was making 

with that was that I’m not turned against all Black people, thinking that all Black people are criminals. And I said that to demonstrate that point. 

But once again, I am deeply apologetic if I offended either one 

of you. And I thank you for taking your time and spending your 

resources at the call of this Committee to come here and testify. 

That’s not your fault that you were called here. And so I appreciate 

both of you. Thank you. 

Mr. GOODLATTE. The Chair now recognizes the gentleman from 

Idaho, Mr. Labrador, for 5 minutes. 

Mr. LABRADOR. Mr. Chairman, I just want to first thank Mr. 

Shaw and Ms. Durden for being here. I have five kids, and I can’t 

even imagine what you have gone through. 

I want to thank Ms. Martinez for your words. And I think you 

and I—and, I’m sorry, I’m a little emotional because this is an important issue for America. And when I see the tragedy that happened to your family, but I also think about a broken immigration 

system that we’re trying to fix, and for us to think that we cannot 

reach a comprehensive approach to immigration reform without 

local law enforcement participating in it, I think it’s a mistake. 

And I know you and I, Ms. Martinez, want to reach a common 

agreement on what we need to do, and I think we have the same 

goal. But my problem is that I think it’s unrealistic for you and Ms. 

Tumlin to think that we’re going to have any kind of immigration 

reform without having some sort of participation from the local law 

enforcement, without giving Mr. Crane the tools that he needs to 

do his job. 

I have to be honest. I practiced immigration law for 15 years, Mr. 

Crane, and I had no idea that you only had 5,000 agents dealing 

with 40 million people. I mean, think about that. If you think about 

5,000 agents dealing with 40 million people, that’s why we have 

the problem that we have today, that’s why we have so many people in the United States illegally. 

And for somebody to sit here and say that you cannot do your 

job, Mr. Babeu, Paul, my friend, that you cannot do your job be-
161 

cause you don’t understand immigration law, I found Ms. Lofgren’s 

questioning a little bit interesting. I practiced law for 15 years. 

Without looking at my book, I don’t think I could have answered 

the question that she asked you because it’s been 3 years since I’ve 

practiced immigration law and I don’t remember the answer. But 

I think you would have been able to train your deputies and the 

people in your office to actually work on this issue. 

And I also believe that if you would have arrested a young man 

who claimed citizenship, I know you well enough that I think you 

would have said, let’s get an attorney who represents you so we can 

determine if you are a U.S. citizen or not. I know, I’m speaking for 

you, but can you answer that question. 

Sheriff BABEU. Yes. Through the Chair and Mr. Labrador, likely 

that scenario would never play out. I can’t even think of a time 

that we would proceed that far. We would call ICE. We have 500 

Border Patrol agents assigned in our county. And the times that 

the only contact we would have is if there was probable cause and 

there was some reason why we in law enforcement are there speaking with somebody and then that issue came up. We’re required 

under Arizona law to ask that question if we have a reasonable 

suspicion, not because of the color of their skin, not because of how 

they talk or how they sound. 

And when we get to that point, that’s where, if it even is an 

issue, we use a lifeline, we call ICE. ICE gives us direction. And 

the direction, in answer to the question earlier, the direction that 

we’ve been given is that person says they’ve been here 5 years, 

treat them as any other citizen, and that’s the end of business for 

us. We deal with what we have to deal with, whether it’s a citation 

or contact or have a good day. That’s it, that’s what we’re doing. 

Mr. LABRADOR. Mr. Crane, you’re trying to do a job to protect our 

Nation, and I think a lot of the job that you do is trying to protect 

us not just from people that are here illegally, but from drug trafficking, from all these other different things. Why do you think 

that this bill would actually strengthen your ability to actually do 

your job? 

Mr. CRANE. Well, the first it does is it gives us some people to 

do the job with. I mean, that’s probably the most important thing. 

I mean, one of the things that we’re supposed to be doing is working every jail in the country, every prison in the country. We’re 

supposed to be working with adult probation and parole to get convicted criminals that even slip through and go to prison and end 

up back on the street. I mean, we need the people do the job. You 

know, things like the detainers to make sure that our detainers are 

actually recognized by local law enforcement, that when put a detainer out there and it’s ignored, then that bad guy ends up back 

on the street. So, I mean, there’s just so many things about this 

bill that will help us do our jobs better. 

We have these two positions with two different arrest authorities. They have exactly the same training, but they have two different arrest authorities. So we end up in situations where we have 

two guys that need to make an arrest and they can’t do it or they 

can’t be assigned to a gang task force or something because they 

don’t have those arrest authorities. It makes no sense. We’re pulling our hair out, out in the field. We’ve asked ICE to make changes 
162 

internally that would give those arrest authorities to all of our officers and they won’t do it. 

So, I mean, there’s a lot of things in this bill that will help us, 

and we’re extremely appreciative to Congressman Gowdy and everyone that’s worked with us to try to put some things in here that 

will get interior enforcement back on track. 

Mr. LABRADOR. Thank you. 

Ms. Tumlin and Ms. Martinez, I want to get immigration reform 

passed. I think it would behoove you to actually work with the local 

law enforcement to try to figure out how we can actually figure out 

a way to make something like this work, because there is no way 

that in the House of Representatives an immigration reform bill 

passes without actually having the assurance that we’re going to 

feel comfortable that what happened to Ms. Durden and Mr. Shaw 

will not happen again. Thank you very much. 

Mr. GOODLATTE. Thank the gentlemen. The time of the gentlemen has expired. 

The Chair recognizes the gentleman from Puerto Rico, Mr. 

Pierluisi, for 5 minutes. 

Mr. PIERLUISI. Thank you, Mr. Chairman. 

Good afternoon. Let me start by restating my support for comprehensive immigration reform as the best course of action for Congress and America to seeking to fix our broken immigration system. We need a commonsense reform that will meet our Nation’s 

needs in the 21st century and it must hold true to our American 

values. 

Real reform must take into account that the challenges that our 

immigration system faces today are multifaceted. They are not situations that can be dealt with through isolated initiatives that only 

address one aspect or another. That approach will not result in a 

better America and will squander the historic window of opportunity that presently exists while true bipartisan efforts are on 

their way in both the House and the Senate to find comprehensive 

solutions to these critical issues. 

Unfortunately, the enforcement-only approach offered by the 

SAFE Act falls short of accomplishing what America needs and 

wants us to accomplish, which is reform that works for our economy, that strengthens and secures our borders and our interior, 

that helps America attract needed talents and expertise, that allows undocumented immigrants already in America an opportunity 

to legalize their status and apply for citizenship, and that improves 

the efficiency and fairness of our legal immigration system to vastly reduce illegal immigration. 

While I understand and share the majority’s desire to improve 

our Nation’s security, I don’t believe that the approach of the SAFE 

Act, which would combine the criminalization of undocumented immigrants with the delegation of authority to States and localities 

to enact and enforce their own immigration laws, would accomplish 

that goal. It is very risky, it’s a very risky approach to a complicated problem and could cause great harm to communities everywhere by opening the doors to racial profiling, wrongful detention, 

and the criminalization of otherwise innocent behavior. 

And I, for one, I am very sorry for the pain that you have suffered, Mr. Shaw and Ms. Durden, I mean, and I tell you, I lost my 
163 

own brother, he was a victim of a carjacking in Puerto Rico. So I 

know your pain and I relate to that. 

But we’re seeking a comprehensive solution. We want to address 

all aspects of this, not only the pain of victims of any crime, including crimes committed by undocumented immigrants, but also the 

pain that millions of immigrants are suffering on a daily basis 

while being in the shadows because the system is not working. 

And of course I join Mr. Labrador in thinking and supporting 

that we have additional resources at the Federal level to enforce 

our immigration laws looking forward, but of course that makes all 

the sense in the world. 

Now, my question is for Ms. Clarissa Martinez-De-Castro from 

the National Council of La Raza. Ms. Castro, in your testimony you 

mentioned the case of Eduardo Caraballo, a U.S. citizen born in 

Puerto Rico, where I come from, and I also relate to this on a personal basis, who was arrested by Chicago police and held for more 

than 3 days in the custody of Federal agents on suspicion of being 

undocumented and was threatened with deportation because of his 

Mexican appearance. 

Do you believe that if States and localities are allowed to enact 

their own immigration laws, including civil and criminal penalties, 

and then given authority to enforce those laws, situations such as 

the one impacting U.S. citizens like Mr. Caraballo, which could impact me as well because of my accent and my Mexican appearance, 

will become more prevalent? 

Ms. MARTINEZ-DE-CASTRO. Without a doubt. And it doesn’t have 

anything to do with being disparaging to law enforcement, which 

I would like to clarify and speak directly to otherwise I’ll get in 

trouble when I get home, because I have members of law enforcement in my family. 

What we did was actually cite facts and findings of investigations. There are bad apples everywhere. And I think that’s why 

there are voices in the law enforcement community that are concerned about how these laws will interact with a number of things. 

The other thing that I would like to say is that there seems to 

be an inherent assumption somewhere here that there’s false lines 

dividing the opinions in this table. And as long as we keep having 

that kind of conversation we’re never going to get to the finish line 

here. To present my organization as somebody who doesn’t think 

law enforcement has a role in this debate is simply false. What we 

believe, again, is that there needs to be a balance. And since there’s 

been a lot of talk about public safety, let me just say that I do hope 

that when we talk about public safety and the public trust we are 

making sure that the Latino community, 75 percent of whom are 

U.S. citizens, are counted in that public trust, because oftentimes 

some of the provisions in this debate and the conversations that I 

hear could lead someone to believe that Latino citizens or legal permanent residents are not considered part of that American public 

or that their trust is irrelevant. 

And I do think here, like I said, there is too much tragedy in this 

issue. We can continue to talk on top of each other, around each 

other, misrepresent what we say. That’s not going to help us. I am 

sure that Ms. Durden can identify with the tragedy of mothers who 

experience the loss of their sons because they were beaten to death 
164 

just because somebody thought they were Mexican. Those tragedies 

are unacceptable. We need to address this problem head on. 

Mr. PIERLUISI. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Georgia, Mr. Collins, for 5 minutes. 

Mr. COLLINS. Thank you, Mr. Chairman. 

I have a district that has been very much affected by the discussions going on. I appreciate, Ms. Martinez, your comments. 

I take great offense at yours Ms. Tumlin. I’m not sure why you 

were here except to bring forth the point of making Georgia, of 

which I was part of that State legislature, and Arizona and others 

who attempted to deal with an issue in their State, who attempted 

to do so in a way that may or may not to your opinion or to others 

been right, and some part which was struck or put on hold by the 

court, but the vast majority of the law was upheld. 

I think you’re right, Ms. Martinez, to draw lines are not good. 

But to walk into here and to take account officers, to take account 

me personally or others in the legislature who honestly tried to 

work through these issues, maybe not to your satisfaction, but did 

so at the request of those who voted for us, the same ones who sent 

me here, is not a good thing, it is not helpful. 

Because as one who is trying to work through this in a very conservative district, one in which we struggle deeply with these 

issues, in which there is a large Hispanic presence, that has made 

our district wonderful from a legal perspective and made a struggle 

from those who are there not legally. And these are issues that we 

have to deal with. 

But to simply categorize it in the way it came across, and I was 

watching, is not and will not be a helpful tool as we move forward, 

especially for those of us who are trying through sometimes great 

difficulty to find an answer for this. To others, from the gentleman 

from South Carolina and from Idaho and others across this table 

who have tried our best to look at this, to do so does not do any 

good. 

And especially from those, as I appreciate, Ms. Martinez, those 

with friends and family in law enforcement, my father was a State 

trooper for 31 years. And to see what he would go through and 

these others go through knowing that in my county, Hall County, 

was one of the first 287(g) counties. 

I have also practiced defense work, and I have my issues, and 

they hold accountable, we hold each other accountable. But to simply say the one argument that never came from me, from my sheriffs who I have great respect for, was that you were basically too 

dumb to enforce the law. It may be I disagree with you on how you 

made this stop or how you did this, but the fact that you were not 

bright enough to enforce it, no. 

And to have law school questions, I appreciate and I respect 

greatly my gentlelady from across the aisle from California. She 

can outrun me any day on most legal aspects. But that’s a law 

school question. What these gentlemen all deal with is real side of 

the road kind of stuff. 

Mr. Crane, I want to focus on my issue in Georgia. Over 50 illegal aliens were released by ICE under the guise of sequestration. 

In March I wrote to DHS and ICE and requested basic information 
165 

about the releases. For example, I asked how many illegal aliens 

were released in Georgia and how many have criminal conviction 

and what are the specific crimes committed by illegal aliens released in Georgia. To date, I’ve never got an answer. 

I’m an original cosponsor of this legislation and strongly the 

needs it fixes to our current law in conjunction with other aspects 

that we need to deal with, with immigration, not just one, but a 

lot of others. However, as we provide for additional ICE detention 

officers and agents and prosecutors, shouldn’t we also take steps to 

ensure that the national security and public safety goals of this bill 

aren’t thwarted by what appears to be politically motivated releases of detained illegal aliens, including criminal aliens. 

Mr. Crane, I would like to hear from you on your thoughts on 

the seriousness of this situation and what we can do to prevent it 

from occurring in the future. 

Mr. CRANE. Well, I think it’s extremely serious, whether it’s in 

Arizona or it’s Georgia, when we’re cutting people to the streets 

that are criminals. We’re not letting law enforcement know about 

it, we’re not letting them know why we’re doing what we’re doing, 

I mean, I think it’s extremely dangerous. And I think there’s definitely, I can tell you as an officer, those things never needed to 

happen. Sequestration or no sequestration, we have ways of trimming our numbers back without making mass releases like that. 

So it’s completely unacceptable, it’s a public safety threat. Everyone up at DHS should be held accountable for. Senator McCain 

himself, from the gang of eight, said Secretary Napolitano is responsible here, somebody needs to be disciplined for that, and I 

agree. 

The things that we have to do is we have to cut back whenever 

possible on the discretion of political appointees, being the Secretary of DHS or the Director of ICE, we have to cut back on their 

discretion. Congress has to codify this, they have to put it in writing how these folks are going to behave. 

Mr. COLLINS. Well, I think that is something that we have got 

to look at. And as my time goes out on this I just want to say, is 

someone looking for an answer here? Let’s deal with answers, let’s 

don’t deal with disparaging comments. 

Mr. Chairman, I yield. 

Mr. GOODLATTE. Thank the gentleman. 

We have—— 

Ms. TUMLIN. Mr. Chairman, I’d like to ask for the opportunity to 

respond. 

Mr. GOODLATTE. If you would suspend for just a moment. We 

have votes on the floor that are 5 minutes into, we have 10 minutes remaining. The gentleman from Florida, Mr. Garcia, is next, 

and he’ll be recognized momentarily. The gentleman from Iowa, if 

he chooses to, can take the Chair and ask his questions, but he’ll 

be cutting really close on the votes. And we will then return after 

the votes and we hope our witnesses can remain because there will 

be a few other Members, including myself, Mr. DeSantis. 

Have you asked questions? 

Mr. BACHUS. Yes. Ms. Tumlin didn’t get a chance to respond. 

Mr. GOODLATTE. No, I understand, I understand, but we’re running really close on time. 
166 

Mr. BACHUS. I just think if you’re going to let other witnesses, 

she ought to be given a minute. Because, I mean, despite the fact 

that—— 

Mr. GOODLATTE. If the gentleman would suspend, I’m going to do 

that, but I don’t have very much time to accomplish it and get both 

Mr. Garcia and Mister—Mr. King said he’s going to come back. 

Okay. So first we’re going to go to Ms. Tumlin, she can respond, 

and then we’re going to go to Mr. Garcia, and we will then come 

back after votes. 

Mr. GARCIA. Mr. Chairman, I think it makes sense that we just 

go back. And I’d rather Ms. Tumlin speak to people when they’re 

here. It sort of doesn’t make sense that she speak. I know of her 

good work and her organization’s incredible work. I know of 

Clarissa’s good work. And maybe we should all be here to listen as 

opposed to letting her speak into the nothingness. 

Mr. GOODLATTE. Well, I understand, but many Members may not 

come back after. So I don’t know if there will be more Members 

then than there are now and I’ll give her— 

Mr. GARCIA. Go ahead, Ms. Tumlin. I’m sorry. 

Ms. TUMLIN. Okay. Thank you. And I know you have to vote to 

get to. 

I think it is really important how we engage in this discussion 

and the level of dialogue we use. I want to be really clear, at no 

point did I say that I believe law enforcement is too dumb to enforce immigration law. So let’s be clear. In my world I have to deal 

with facts and evidence. I don’t get extra credit for representing 

undocumented immigrants, no one gives me an extra chance. I 

need to deal with facts and evidence. 

The facts and evidence show from court findings from the Department of Justice that under the 287(g) program in its prior incarnation, the way it operates now, there are patterns of unconstitutional violations. That’s what we’re pointing out today. And as an 

expert in immigration law when I read the 174 pages of this bill 

I have serious fears about the expansion of that authority and 

what it would lead to and what it would mean on human terms. 

And also to the parents who lost their children, for everyone in 

this room it was hard to listen to. I am a mother. Of course I 

empathize with you. I cannot begin to understand. Because I’m a 

mother, I know I can’t understand what happened to you. But I’m 

a proud American, and one of the things that I am proud of is that 

we believe in equality and equal treatment under the law. And this 

bill does not do that. That is why I’m concerned. 

We believe that you do not get held without probable cause and 

we believe that no group, whether they are noncitizens or whatever 

country they came from, is stripped of those constitutional values. 

I urge us to look at what this bill does to remove equality under 

the law for a specific group. And I appreciate the indulgence of the 

Chairman’s time. 

Mr. GOODLATTE. I thank the gentlewoman. 

Mr. GARCIA. I’ll go ahead and take my 5 minutes, there is enough 

time. 

Mr. GOODLATTE. Okay. The Chair recognizes the gentleman from 

Florida for 5 minutes. 
167 

Mr. GARCIA. I’ve seen the law enforcement persons here, and I, 

unlike others here, I have spent a great deal of my time working 

on immigration. And one of the great prides that I find in working 

with law enforcement is that law enforcement doesn’t want additional responsibilities, that law enforcement is overwhelmed with 

responsibility already, very sacred trust that they have with the 

local communities, with those people that get hurt, in particular to 

get witnesses of serious crime. And so I worry about how we’re selling this here. 

Mr. Crane has come here time and time and time again and spoken against immigration reform. And, Mr. Chairman, I have the 

deepest respect for you and for trying to get this through, but this 

isn’t the debate we should be having today. We are close to solving 

a national problem that could have solved a lot of problems we’ve 

seen here today. And it is important that we realize that. Because 

we can pull back, fear, fear mongering and hate and anger are underlying a lot of what goes on today here. And clearly we’ve come 

a long way, and it’s very important to go that way. 

I want to bring this question to either Clarissa, Ms. Martinez, or 

Ms. Tumlin. I happen to know for a fact because I’ve worked with 

you both in the past or your organizations that you have dealt with 

law enforcement. Can you speak to that really quickly? 

Ms. TUMLIN. Yes, and I think we’ll both address that quickly. Absolutely we speak with law enforcement regularly. We talk to police 

chiefs, we talk to sheriffs about this very issue. And what they 

have told us is exactly what the Congressman is pointing out. We 

want to do our jobs. We need the community to have our back, not 

to be terrified of us. We want to make choices about how to 

prioritize, how to enforce law and keep our communities safe. 

We’ve heard that from sheriff after sheriff across the country. 

Ms. MARTINEZ-DE-CASTRO. Yes, and I spoke about this at the beginning. There are differences of opinions, but I think that there 

is a shared concern in the law enforcement community about how 

this interaction takes place, what it may do for people’s willingness 

to report crime, whether a crime is being committed against them 

or whether they are witness to one. 

And I think as we’ve heard from several Members, a very recent 

study corroborates previous studies that say that that is not unique 

to people who are undocumented, it is also a fear that is now taking hold of Latinos who are U.S. citizens. 

Again, this is about balance. I feel that a lot of the discussion 

here, there’s almost like aggressive agreement on some things and 

then we’re trying to focus on the things we don’t agree on. We cannot continue to tear each other apart and move us away from actually—we’re much closer to a consensus that we think. 

And the American public has a larger consensus on this issue 

that Congress gives it credit for, and I do hope, as is usually the 

case, that leaders follow the people, that we can get there soon. We 

have a real opportunity to do it this year. The solution does involve 

law enforcement. But, again, we’ve been doing enforcement for 20 

years. We can say we’ve learned lessons and we can do it better, 

and I do think enforcement needs to be smarter and more accountable based on the lessons we have learned over that regime in the 
168 

last 20 years. But I think we also have to admit that the solution 

we are after is not going to come through that one piece alone. 

Mr. GARCIA. Mr. Chairman, I yield back the balance of my time. 

Thank you. 

Mr. GOODLATTE. The Chair thanks the gentleman for a minute 

and a half of additional time—— 

Mr. CONYERS. Mr. Chairman? 

Mr. GOODLATTE [continuing]. For Members to get to the floor. 

Mr. CONYERS. Mr. Chairman? 

Mr. GOODLATTE. Yes? 

Mr. CONYERS. Could I inquire as to whether there’s any intention 

that this measure be marked up next week? 

Mr. GOODLATTE. We are working very steadily toward making an 

announcement on that very soon. 

Mr. CONYERS. Could I caution you that, for one, I’d like to review 

this record and I’d like to see the transcript before we move to that. 

Mr. GOODLATTE. I know the gentleman has been here for most 

of the hearing and has had the benefit of that, and we want to afford him of the opportunity to hear as much information as possible. But we also recognize that there is a lot of work going on in 

both the House and the Senate and this Committee needs to do its 

work as well. So we’ll have further discussion about that. 

Right now we do have a vote pending on the floor with very little 

time for the Members to get there. So the Committee will stand in 

recess. And we ask the witnesses to stay because we do have at 

least two or three more Members who would like to ask you questions, including myself. And we thank for your patience and forbearance. 

The Committee will stand in recess. 

[Recess.] 

Mr. KING [presiding]. This Committee will come to order. I want 

to thank the witnesses for taking time out of your lives to be here 

to speak up for American values on whichever side of the argument 

that you might be. And I appreciate some of the tone and the demeanor that I have seen among the witnesses here just recently as 

well. So a lot of the Members have elected to move on to other duties. And the Chair will recognize himself for 5 minutes. 

As I listened to the testimony, I reflected on a few things. A 

hearing here before the Judiciary Committee, as I began—and I 

will direct my first question to Mr. Crane so that he can be ready— 

a hearing we had some weeks ago before this Judiciary Committee, 

I had a self-professed illegal alien approach me and lobby me on 

immigration policy. I came on inside the chambers and there was 

an introduction of people that quite likely were unlawfully present 

in the United States. 

I would first turn to Mr. Crane and say, was there anything you 

could have done to bring lawfulness to that behavior? 

Mr. CRANE. No, sir. I think I probably would have lost my job 

had I even spoken to anyone. In fact, the Senate hearing that I did 

where there was an illegal alien present, I sent an email to the director of ICE asking him for guidance on how, as an officer, I 

should respond in that situation, and they wouldn’t even respond 

to me. But judging from things that are happening in the field 
169 

right now, you know, if that person was in jail, I couldn’t do anything to him right now, let alone in Congress. 

Mr. KING. But the reason for that wouldn’t conform with U.S. 

law, would it? 

Mr. CRANE. I don’t believe so. No, sir. 

Mr. KING. Because the U.S. law directs that they be placed into 

deportation proceedings? 

Mr. CRANE. Yes, sir. 

Mr. KING. And so what would be the thing that prevents you 

from enforcing U.S. law? 

Mr. CRANE. It would be the policies of the Obama administration; 

specifically, the prosecutorial discretion memorandum in this case 

as well as other policies, such as our detainer policies and our guidance for making arrests in the field. 

Mr. KING. Don’t I remember in one of those memorandum that 

there were, I believe, seven references to on an individual basis 

only and references to prosecutorial discretion? Are you familiar 

with that memo that I’m referring to and the language? 

Mr. CRANE. I don’t remember that language specifically, but I 

know there were about 18 different scenarios or something. And 

that at the bottom it says, this is not an exhaustive list of the 

times that you have to exercise this type of discretion. So like I’ve 

said many times, we’re clueless out in the field with regard to how 

to enforce. At this point, most officers and agents just try to keep 

their heads down and stay out of trouble. Staying out of trouble, 

meaning don’t arrest anyone. 

Mr. KING. Do they, though, reference an individual basis only on 

prosecutorial discretion? 

Mr. CRANE. I’m sorry? 

Mr. KING. Is part of the directive that you have from the Administration to utilize prosecutorial discretion on an individual basis? 

Mr. CRANE. Yes. 

Mr. KING. But aren’t we dealing with this essentially as full 

classes of people? 

Mr. CRANE. I think it works both ways from the Administration 

policies, that they tell us to do it on an individual basis but at the 

same time they give us orders not to arrest or detain entire classes 

of individuals. 

Mr. KING. So the memo might say individual basis prosecutorial 

discretion, but it’s applied on a group basis and you don’t have the 

discretion to apply the law? 

Mr. CRANE. That’s exactly right. And prosecutorial discretion is 

not discretion, they’re orders not to. We have no discretion. We’re 

being ordered not to arrest certain individuals or groups. 

Mr. KING. Some of that’s the basis of the case of Crane v. 

Napolitano. 

Mr. CRANE. Yes, sir. 

Mr. KING. And can you inform the Committee of the status of 

that particular—before you do that, I do have this decision from 

Judge Reed O’Connor from the Northern District of Texas. And I’d 

ask unanimous consent to introduce this decision into the record. 

Hearing no objection, it will be introduced into the record. 

[The information referred to follows:] 
170 

Case 3:12-cv-03247-0 Document 58 Filed 04/23113 Page 1 of 38 PagelD 898 

J:\I THE U:\IITED STA TES DISTRICT COURT 

FOR THE :\IORTHER.~ DISTRICT OF TEXAS 

DALLAS DlVrSIO,," 

§ 

CIIRISTOPHER L. eRA"E ct aI., § 

§ 

Plaintiffs, § 

§ 

v. § 

§ 

JANET :\IAPOLlTA:\IO, in her officiill § 

COIJllcit}' as Secrelllly of /Jollie/and Security, § 

ct~ § 

§ 

Defendants. § 

§ 

Civil Action :\10. J:12-cv-03247-0 

~IEMORA:\IDUM OPINION i\,"D ORDER 

Before the Court arc Plaintiff;;' Application for Prdiminnry Injunctive Relic f (ECF No. 24). 

Brief in Support of Plnintitls' Application for Preliminary InjunCit\'C Relief (ECF 1\'0. 26). 

Defendant>' Oppositio11 to Plaintil1's' Application for Preliminary Inlunctive Relicf(ECF No. 34), 

PlmmifTs' Reply Brier in Support of Plaintilfs' AppiicationioI Prclmunary Injunctive Rdicf(ECF 

No. 16) .. and "\ppcndix to Pbintlfts' Reply in Support of Application for Preliminary Injunction 

(ECF No. 37). The Court held 3 hearing on this matter on April X. ZOLl. Ser Electronic Mmutc 

Entry, Apr. R. 2013. ECFKo. 53. For the reasons set il)fUl below, the Court concludes that I'!aimifts 

arc likely to succeed on the merits of their claim that rhe Directive and related provisiollS of the 

'>'.lorton Memorandum violate 8 V.S.c. § 1225(h)(2j(A).!Jlll the ('OUlt defers ruling on Plaintiffs' 

App!ic~tion ior Preliminary Injunction (ECFNo. 24) ulltil the parties have pw\idcd the Court with 

additional briefing. 
171 

Case 3:12-cv-03247-0 Document 58 Filed 04/23113 Page 2 of 38 PagelD 899 

1. FACT{iAL A~D PROCEDURAL BACKCROU?'l'D 

The United States Dcpm1menlofliomdal1d Sec-mity ("D1IS") is ,j Cabinel-Ievel dcp,u"tmcnl 

or the United States govcrlllm:1l1 created ill 2002 for the pml'osc of coordinating and uni(,ing 

national homeland security efforts. Creation of the Department of Homeland Security. 

http:j,www.dhs.gov,crcal1on-dcpamllcnt-homeland-sccurity (last \·isited Apr. 21, 2013). Defendant 

Janet Napolitano is the current Secretary of DlIS. Pis.' Am. Compl. ,. :>'2, ECf No. 15. DIIS is 

charged \li,'ith, an10ng other things, protecting (1UT natton '5 border sccurity~ cyhcrsCCllrity~ and 

economic security, preventing human tratncking and wLTOlism. alld safeguarding civil rights alld 

c[vil liberties. Topics. hllp:/\~ww.lUh.gov!topics (last visited Apr. 23.2013). DlIS is also 

responsible for overseeing citizenship and immigrmion in the United States. Jd. The Lnitcd States 

Citizenship and Immigration Services ("l]SCIS"j oversec,; lawful immigration in the United Slales. 

Citizcn"hip & Immigration Over. lew. htrp:i.:www.dhs.gm"/Iopic!citizenship-and-immigrationover'lew (last visited Apr. 23, 2(13). Defendant Alejandro i\'layorkas is the cunen! Dircclnr of 

USCIS. PIs,' Am. CompL ~, 24, ECF No. 15. USCIS grants immigration and citizenshIp benefits. 

prolnorcs all 3Y\'arCness and lInd.crstancUng of citizcnship~ and ensures the integrity of our 

immigmtion system. Citizenship & Innnigmlioll Ov'crview. htrp:l\nny.dhs.gov,'topicicitizcnshipal1d~il1lll1igratiol1~o\'ervjcw (la,rvisitcd Apr.:>.3. 2013). The United Swtcslmllligratioll and Cmtol1ls 

Enforcement ("ICE") is the pr1l1cipnl ij1Vcstigativc 311n of DIlS, and its primary misslOn is to 

promote homcland security and pubHc safetythrough the criminal and civil enforcement oftedcral 

laws governIng border controL CL1:-,toln:i~ tradc~ anu llnnligrallon. Overview, 

http:! www.icc.gm·:nl1outi<wcrvicw (last yisited Apr. 2.1, 2(13). Defendant John :\'I01ton is the 

current Director ofICE, PIs.' Am Compl. .. :>'3, Eel' No. 15. ICE receives an annllal appropriation 

2 
172 

Case 3:12-cv-03247-0 Document 58 Filed 04/23113 Page 3 of 38 PagelD 900 

from Congress 10 remove inJiviullals I\lho arc unlawfully present in the United States. Tmmigrstion 

EnHm:emcnl 0 luview, hllP: ij www.L1hs.gol/(opic!immigratioll-cniorCClllcnt-(lVcn iew (last v isitcLi 

Apr. 23, 20B). 

On June 17, 201 L Dcfcndam Morton issued a Mcm{)randulll entitled "Exercising 

Prosccutorial Discrclion C(1l1SiSlcnt with the Civil Immigration Entorcel1lcntPriorilics ofIhc Agency 

forthc Apprehension, Detention, and Removal of Aliens"' (the '''Motion "'1ernorandllrn"'). PIs.' Am. 

Compl.~' n. ElT ,,"0. 15. The ~·1orton Memorandum provides ICE personnel "'guidance on t.he 

exercise of pros ccutona I discretion to ensure that the agency's imllligralion enforcement resources 

aTe f(lCltscd Oil the agency's cnibrccmcnt priorities," which include "the promotIOn of national 

security, bordcrsccnrity, public safety. and the integrity of the immigration system." ~10rtOtl Mem. 

at I, 2, ,n'ai/"b/" fit http:! www.icc.govidoclib!securc-col11n1l1nitlcsipdCprnsccutorial-discrctiollmemo.pdf The Morlan Memorandu.11l sets om sCI'eml factors that TCE "nicers. agents, and 

attorneys should comider when determining whether an exercise OfpfOSC(;utoriai discretion may he 

warranted for a patticlllar alien. See :Ylorton Mem. ar 4--5_ {lmi/able a/ 

http: .·\\'W\> .icc.govidoclib:scemc-eommuniticsipdjjprosccutorial-cliscrction~ll1cmo.pdf 

On .lune 15, 20lL Defendant Napoliwno isslied a Directive entitled '"Exercising 

Prosccutoria! Discretion with Respect to Individuals \'.-"ho Came 10 the United States as Children" 

(thc'"Dirccth·c"). Pls.' Am. CampI. ~.~' 2. 29, E(T No. \5; Pis.' Am. Compi. Ex. 1 (Directive). ECF 

No. 15-1. The Directive sets tlmh to what extent. in the exercise of prosccutorial discretion. D1IS 

should enforce irmnigratiol1 Ilms "against ccnail1 young people who were brOLlght to this COUJ1lry 

as children ~nd knmvonlythis country a, home." Pis. - Am. COI11P1. Ex. I (Directive), at I. ECF No. 

15-1. TIle Directive instructs ICE of1icers to refrain from placing certain aliens who are unlawfully 
173 

Case 3:12-cv-03247-0 Document 58 Filed 04/23113 Page 4 of 38 PagelD 901 

present in the United States inlo rCll10vnl proceedings. IT also directs ICE officers to facilitate 

gnmtmg dcJcrrcd action to aliens who arc unlawfully present in the United State, and aTC already In 

rcmnval proceeding:'> but not yet suhiect to a flnal ordcrofrcnmval, Pis.' Am. Clllnpl.~: 2. ECF No. 

15; Pls." Am. Comp!. Ex. I (Directive). at 2. ECF No. 15-1. The Directive also instructs USeIS to 

accept applicmions [0 determine \\"hethcrthc individuals who rccci\'c deferred action arc qualilied 

for work ~\lrthorization during the period of deferred action. PIs." Am. Compl. , 2, ECF No. 15; 

PIs.' Am. Compl. Ex. 1 (Directive). at 3. ECF No. 15-1. To qualify for deferred actton under the 

Directive, the alien must s~tisfY the following criteria: 

came to the Uniled Slales under the age oJ'slXlcen: 

has continuously resided in the United Stales for al least five 

years preceding the date of [rhe Directive] and " present in the 

United Slales ol1lhc date nJ'[thc Directive]: 

is currently in schooL has graduated ii'om high school, has 

obtllincd a general education development cCltillealc, or is an 

honorably discharged veteran of the Coast Guard or Armed 

Forces "I' ~,c United States; 

has nol been convicted of a fdony offcmc, a significant 

rnisdcl1lC'3nor otTensc, mUltiple misdemeanor oHcn"es. or 

otherwise poses a threat to nailOnal secUlily or public safety; and 

is not above lhe age of thiny . 

. Pls." Am, CampI. Ex. 1 (Directive), al 1. ECf No, 15-1. 

In July 2(] 12, DHS issued the "ERO Supplemental Guidance: Exercising Pn:>sccutorial 

Discrcrion with Respect to Individuals \,Vho Came to the L'nited States as Children." which directs 

DHS pcrsolmel to implement the terms oflhe Directive. PIs.' Am. Comp1. .. 30, ECF No. 15. In 

early August 20n. DIIS issued a document entitled "National Standard Operating Procedures 

(SOP): DeJcncd Actiun fbr Childhood Arrivals (DACA) (Form l-x21D aml Foml 1-765):' wInch 

explains how DHS will process applicatiolh for dcfelTcd action llnder the Directive. ld. <; 11. On 

4 
174 

Case 3:12-cv-03247-0 Document 58 Filed 04/23113 Page 5 of 38 PagelD 902 

August 15.2012, DHS hegan acceptingrcquesrs for comidemtiol1 of deferred action and applications 

for employment authorization pursuant to the Directive. Id. '" 32. 

ScvcmllCE Deportation 0 meers and Immigration Enforcement Agenl,; I flied this la,,",uil 

on Angust23, 2012,10 challenge the constitutional and statlltOlY validity of the Directive and the 

:Morrol1 MCn1omndtlll1. .'Ice general1]' Pis.' Compl., ref No. I; PIs' Am. Compl., Eef 1\0. 15. 

I'lamtifls asscrlthallhc Directive violates (l) federal stmutes rcql1lring the initimion ofrcmovals; 

(2) fedcral law by conferring a non-statutory form of benctit dden'cd action- to I11me tha n 1.7 

million aliens, rathcrthan a form of rdief or henefit that fodcral law permits on slIch a large seale; 

(3) the coJlstttutiona! allocation of legislative power to Congrcs~; (4) the Article II, Section 3, 

constitutional obligation of the Executive [0 take care that the laws arc hlithti.llly executed; and 

(5) the Administrative Procedure Act thrnugh conferral of a benefit without rcgulatolY 

I Plaintiff Christopher L. Crane is an ICE Dep0!1atiol1 Officer in West Valley City, Utah. Pb.' Am. 

C()!llpL • <), 1O(T .'in, 15, Plaill!iff Duvkl A. Engle is all ICE humibq'ation Lnfnrccmcnt Agent in Dallas, 

Texas. /d.,; 10. Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent in £1 I'aso, 

Texas. lei. ~111. Plaintiff RicurLio DiaL is an ICE lrnmigmticH1 Enn)fc~rncnt Agent in 1:1 p~~o~ fcxas. Jd. 

~! 12. PlaimiffLorenzn C:rurzJ is an lCE JmmigratilH1 Enforcerncm Agent in L()~ Fre~nos, J'ex<ls. ld. ~i U. 

Plaintiff FelL,- Luciano i:-; an ICE hnluigration Enforcement Agent in San Diego. California. id.~: 14. 

PlaintiffTre Rebsto<.,k is an ICE Immigration f:nforcemen! Agent in Huntsyillc, Texas. Id. ~': 15. PlaintilT 

Fernando Silva i~ an ICE lmmigration l~nti)rCCrnCnl Agent in EI Paso, fcx[ls. Ill. '116. PlaintitlSamucl 

Martin is all ICE Immigration EnforCement Agent in EI I'aso, Texas. ld '117. Plaimiil' James D. Doehlor 

is an ICE DepOlialioo Of ricer in Do'or. Delaware. fr!.· 18. The State of '1'1 i,,;s»ippi, by and through 

Governor Phil Bryant, ,\-as nrigmnlly an additional J11aintiffin this la\vsuit~ hmthc Cmn1:dismlssed its claims 

l(lr lack llf standing. See Order. . .Jail. 24, 2013. Eel' No. 41. The ("Dun found thaI the Slale of Mi"issippi 

lacked standing h~causc its a."18crtcd fls.cill cot'lclus,ory ~nd hnscd on purely spcculatl"c economic 

data. Jd. at 32. In contrast) the Coun that the indi"ic1ual plaintiffs satistlcd the constitutional 

n.:qLlircmcnts Df:-i-t,mding with resp-t:C:l to the Dircctin:: and rdat..:d provisi(ln~ nfthc :\lorton ~1cmorandum 

that inslTuct them to violate what they helieye 10 he their statuWI)' obligations, and Ihey f,ce a sufliciemly 

conc:n:tc threat ofdisl"iplinary action irihey \,iolate Ule l'omnl<mLis of the Dir~l'tivc 

n 'Nolice to Appear in removal proceedings 10 a Diicerivc-eligihlc alien. lo'. at 

Order will address Plaintiffs' AppliCaTion 1<)r Preliminary Iniun~tion only as il pcrtams 

Der0l1atlOn Officers ond ICE IInrl1igration Entorcement _Agents (('ollecth'cly~ ~'PlaintitTs")_ 
175 

Case 3:12-cv-03247-0 Document58 Filed 04/23113 Page 6 of38 PagelD 903 

implementation' Pis" Am. Cmnpl. f:'\i 67·..,';{], 92-116, ECF ~o. 15. Plaintif[~ challenge Ihc 

portion; of tbe Dirccti\c and Mol1on MCl1l0r:mdum thai require ICE oflkcrs to exercise 

pro1>ecutorial uiscrcLioll anu delb· action again,t. aliens \Vho "llt'J)· the Directive's criteria. 

Plaintit1i< contend rh8t the Directive command;; ICE officers to violate fedcmllaw and to 

violate tlleif oaths to uphold and support fedcrallaw 3 fd. C;<; 4.37-46. As a result. Plaintiffs lmvc 

expressed their desire no\.lCl follow the lhrcctlvc, but They believe they will be disciplined or ,utrer 

other adverse employment consequences if they arrest or issue a Notice to Appear in removal 

proceedings ("'NT 1\.'")' to an alien who satisfies the factors for deferred actiotlscl out in the Directive. 

ftl . .,. 49. Plainlilh ,eel a declaratory juL1gment limn this COlllllinding the Directive unlawful ,md 

in violation 01"111C COllstnuriol1. PIs: Am. CampI. '\if: A-E, ECr No. 15. Plainrifts correspondingly 

requesl the Courtl,) vacate the Directive and relevant provisions ofthe MOlion Memorandum. Td. 

Plaintiffs ultimatclyscck a pcrmancntinjunction prcvcntingthcimplemcntatiol1ofthc Directive and 

preventing DHS li·om takmg any adverse ac.tionagains( !'laintifIs liJr failurclO follow the Direclive.. 

lei. °1 F. 

Plaintifts filed their Application for Preliminary InjunCTion on ~o"cmber 28,2012. askl11g 

the Coun to prCli1l1111arily enjoin Defendants trom implemCl1ting and enforcing the Directive and 

::! In their Amcnch::d Complaint, Plaintiffs additionally allege Ulal the Din.:L:tiv~ dolatc~ fc:ocra! law 

by Cllnfcrring the legal henefit ,,("employment amhorization without any has is and under the raise 

pretense of "prl1s,ceutorial di~l'T8tion.'· PIs.' Am. Compl. ,; 81-91, ECF No. HCHvevCf, the Court 

dismiss.,;d thi~ Ci.lUS~ of actiDn t~)r lack of stm1l1ing. Sec Order, Jail. 24. 20 13~ Eef No, 41. Al·coruingJy. thi~ 

Order will addrc" Plainliff,' Application lor Preliminary injunction only as it pertains to the remaining 

cau~c~ of action. 

3 The specific provisions o1"fcdcrullaw at josllc will be discussed later in this Onkr. See in(i'" Pal1 

111..1\.1. 

4 An ~TA is [-J legal document thaI initiatc~ r(;1110val proceedings agajnst [In alien. . . "Iee ~ U.S.C. 

* 1229: X C.F.R. ~ 239_1 
176 

Case 3:12-cv-03247-0 Document 58 Filed 04/23113 Page 7 of 38 PagelD 904 

related provisions of the Monon iVlcmorandum. Sce RCllemllv PIs.' App!. Prelilll. rni., EeF No. 24. 

Defendants HIed their Opposition on December 19,2012. and PlaintilT, med their Reply on January 

2,2013. See gelleral(\' Det'" Opp'n AppL Prelim. In(" EeF No. 34; Pis' Reply AppL Prelim, Ini., 

E(,FNo.36. The Court held an evidentiary hearing 011 April8, 20 13-' See Electronic Minute Entry, 

Apr. 8., 2013, ECF No. 53. Accordingly, the issues have been briefed by (hepartics and this malTer 

is ripe for c1ctcmlimlion. 

11. LEGAL STA;'I;DARD 

To obtain preliminary injlUlctivc relict: a movant "must establish that he is likely to succeed 

on the merits. that he is likely to suffer irreparable harm ill the absence of preliminary felicC that the 

balallce of equities tips ill his favor, and that on injunction is in the public interest:' If'imer \. 

Natural Res. Dc{. COlil/cil. Jrw, 555 US, 7, 20 (lOOil): see a/so 'vic/wls v. Aluael USA, lite .. 532 

F.3d 364, 372 (5~1 CiT. 200~); Calla/ A II lit of Fla. v. Callaml},. 4R9 f'.2d 567, 572 (5th Cir. 1974). 

A prdiminary injunction "j" an extraordinary and dnmic remeely, 110t to be gmntcu murineiy. hut 

only when rhe llIovant. bya clear showing, carries the burden ofpcrsuasiol1." While v. Carlucci, X62 

F.~.d I~09, 1211 (5th Cir. 19S9, (quoting Huliand Am. 1118. CO. I'. SUCCI'ssioll o(Ro)/, 777 F.2d 992, 

997 (5th CiL 19:15)); I'ce also Kamila Bodas Co. v. Pr>msa/1I11ln Pcrtamhangan Mil1l'ak Dan Gas 

Bwni Negam, 335 F .3d 357,363 (5th Cit-. 20(3). Ifthc moyant fails to carry ils burden on any olle 

of the fOllr clements, the court must deny the request tor preliminary injuncti~'c relicf Sec 

Gmlmmies. Inc. I'. Goal1pair.colI!, Inc. 464f. Supp. 2d 50], 6()7 (KD. Tex. 20()6). Even when the 

5 Ihe Court delayed cUilsidcr31ion of Plaintiffs~ Application for Prdiminary InjunctIon white: it 

examined the complicaled issucof,t:mding, See g{,llcraliv Order, Jan. 24, 2013, LCF No. 41. Addirilll1ally. 

counsel fnrDcfcndant::; soughtadcJay based on personal ohligHtions. See Unorposed ~v1m. Reschedule Date 

Pis' Prelim. In; flr·g. Eel-' No. 48; Order Setting 111"1', Fen. L 2013, ECF No. 49. 

7 
177 

Case 3:12-cv-03247 -0 Document 58 Filed 04/23113 Page 8 of 38 PagelD 905 

movant carries its hurden of persuasion 011 all of th", four factors for ohtaining a prcHminfll'Y 

injunctioll. the dcci>ion to grant Of deny pn:Hmil1ary injul1eli,'c relief is leli to the ,muml discretion 

orthe district court. i'vli.,s. Puwer,~ Light CO. I'. Ulliled Gas Pipe Line Co., 76() F.2d 611( 621 (5th 

CiT. 1985) (citing C"nal, 4R9 F.2d at 572). "The decision to grant a preliminary injunction is 10 be 

treated as the ~xccption ralher than the rule." [d. A mov,mt who obtains a preliminary injunction 

must post a bond 10 secure the nOIl-mOV3lU against any wrongful damages it suftcrs as a reslllr of the 

inlunction. fed. R. eiv. P. 65(c). 

III. ANALYSIS 

Pldintin"S tiled their Application for Pre! !mmary Tnjullclionon Novcmhcl21L20 12. Plailllill's 

seck an injunction pre\"l'~ntil1g Defendants li'om impicmcntingand ent()Tcingthc Directive and related 

provisions of the Morton Memorandum until the COllrt fully decides the lawfnll1cs,; of those 

dOClnncnts. PIs. App!. Prelim. lnj. 1·2,ECfNo. 24. The Court will address each clement required 

to ohtain a preliminary injullction in turn. 

A. Likdihood of Success 011 the Merits 

To secure a preliminary injullction, Plail1tiffs must establish that there is a substantial 

likelihood tholthcy will SlIccecO on the merits ofllleir claims. SCC' JWIV£T t·. Alguire. O,P f.3d 5XS. 

59) (5th Cif. 2(11). "It is not necessaty for Plaintiffs to prove to an absolute certainty that they will 

prevail on the merit~." P/o(,[d Oil Co. v. US. Dep'/ of/llfe,io!', 491 r. Supp. 895, 90S IN.D. Tex. 

1980). Rather. Plaintitll; must raise "questiolls gomg to the merITS so serious. substantial, and 

dime LIlt and duubtful. as to mnk~ them a fair ground for litigatiun." Jd. (quuting Hamilton Walch 

Co . ... Bellnt., Watell Co., 206 f.2d 738" 740 (2d Cir. 1(53)). They must present a prima facie casc, 

but need not show they arc ccrmin to win. See Ja/lty!)'. 647 f.3d at 595-96 (citing II A Charlcs Alan 
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\Yright, Arthur R. "'filler & :'vlary Kay Kane, Federal Prilcrice and Procedure § 2948.3 (2d cd. 1995) J. 

A '"mole tlmnncgligiblc chanccofslIcccss" i" suITicicnt 10 obtain a preliminary injunctioll. Compact 

Val! Eqllip. CO. F. Legge/! & Platt. fnc .. 566 f.ld 952, 954 15th elr. 19n). Thc Coun will begin 

with an analysis of what Section 1225 of the Immigrmion and Nntionality Act C'l?\A")' requires, 

because that stalme is ccntrallO all ofPbintiffs' causes of action. 

1. 8 U.S.c. § 12.25 

Plaintift:s as;;crt that the Directive and relatcd provisions of the :\10110n Mcmorandnm 

expressly violate 1eclcral statures rcqllirillg the illiriatlOll of removal proceedings. 13r. Supp. Pls.' 

AppL Prelim. Inj. 30 ,7, ECF No. 26. Spccillc<llly. Plaintim as;C!l that the Illegal Immigration 

Reform and Immigram Responsibility Act of 1996 ("llRIRA") reqmres immigration oftlcers to 

initiate removal proceedings when they encounter iI1cgul immigrants who arc not "clearly and 

beyond a douht entitled to be adm ilted." and that any "prosecmorial discretion" can only be exercised 

llficf' removal proceedings h~vc bccn inill1ltcd. SeIC ~ lJ.S.c. ~ 1225: 13r. Supp. Pis.' Appl. Prelim. 

111). 4, 5. ECF No. 26. PlalmilTs assert that DCICndant Napolitano's 3uthollty under l:i U.S.c, 

§ II 03(a)(5) as SccrctaryofHomc!and SceLlrityro CJ1j~)fCC the immigratlonl,,\\s cannot be construed 

10 3uthonzc hcrto order her clllployees (0 violate the requirements of !Cacm1law 1I1 H USe. 9 1225. 

Id. at 5. Defendants respond that 8 U.S.c. S 1225(b)(2)(A\ only applies to aliens arriving in the 

United States at 3 port of entry, mther than to 311Y illegal alim that immigration officers C\1COll1ltcr 

f) The iSlol1 at i~s.ltc in the present case is. Section 1225 of Title Hofrhc United States 

Cod.::. "fitk 8 nr the States Code contains the provisions of the fNJ\. This particular statutory 

-pnnlsiof1 corr'.3'sponLis to Scc:t1on235 ufthc INA. and it is otten rcklTcd to as Section 235 in opinions from 

the Board of Immigration Appeals and in the inl111igration regulations located in Tilk H of the Coll~ of 

l'cc!eral Reg.ulatil)!]'. The (,nlted Statcs Supreme Court. in con,,,"sl, cimtions to the Cnllcd States 

Code when it addrcssc:{ Immigration J3\'"'. ,)'ce. t 32 S. {'to 2492, 2502 (2012). 

h.lt' s.implicity and darity. the Court will rctl;r to mls P",wlsHm 

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who has not bcelllawfully admitted to the United Stales. Dels'- Opp'n App1. Prelim. Inj. 17-19. 

ECF No. 34. Dclcndalll, [mtller argue thallhc INA granls broad di,crdion 10 the ExcclItiw Bnll1ch. 

including the decision whether 10 initiate removal proceedings. so even if II 1:.S.C. ~ I 225(b)(1)(A) 

applies aT places other than a port of entry, it still docs 110t mandare the initiation of removal 

proceedings. !d. at 14. 111e Court t1nds thai R U.S.l. § I 225(b)(2)(A) is not limited to aliens 

aniving in the United STares ar a pon ofanny. and it mandates the iniriCltion of removal proceedings 

whenever an 11111nigration oiJiccr encounters an iUcgaI alien \\'110 is not hdcarly and beyond a doubt 

entitled to b0 admitted." 

a. 111~ Scope oIS U.S.c. § 1225(b)(2)(A) 

Section 1225 Slates: "An ali en j1rcscnt in the L:nitcd Stat;:;s who has not been admitted orwho 

arrives in the United SillIes ... shall be decl11.cd tl)]" purposes of this chapter an applicant fl)r 

admission." R eSc. § 1225(a)(1). 1n rhe ]);A, the terms "admission" and "admitted" m;:;an "the 

lawful entry of the alien imo the United SLates aller inspection .]nd <luthorl'<11iol1 by an immigration 

olliec!.'· Id. S 110I(a)(J3)(A). An alien "who has Ilot been admillcd,"thcrcfOJc, isonalicnwho has 

nor lawl1.llly c11lcrcd into the L nilcd Stares "atter il1Spcetion and alllhorizatioll by an immigration 

officer." See ill. By the Directive', terms. any Directive-eligible alien would be one "who has not 

heen admitted" and is therefore deemed an "applici11ll lor admission" for purposes of Section 1225. 

Seegeni'ru[1< Pis.' Am. Compl. Ex. 1 (Directive), ECOI' No. 15-1. Section 1225 further provides that 

"[a]1I aliens ... \\'ho arc applicants for admission ... shall be inspected by immigration otliccrs." 

8 1.J.S.c. § 1225(a)(3). Subject 10 certain exceptions nol relevant to the present case, whell an 

ill1migmtion officer encounters "an alien who is an applicant for admission, if the: examining 

immigration otTicer dctem1incs that an alien seeking admission is nor clearly and beyond a doubt 

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entitled to be adl11ilted, the alien shall be detailled for a proceeding under [S]cctiOll 1229a of this 

title." Jd. ~ I 225(b)(2)(A) (emphasis added). TIle proccedmgs under Section 1229a arc removal 

proceedings in the ljnitcd Stales Immigration COllIh-' ft!. § 1229<1. 

Defendants contend lho1" Section 1225(b)(2)(A)'s ststCI11Clll that the "nlicn shall be detained" 

applies only to applicants for admission who arc "seeking admission" to lhe lJniled Stmes, as 

distinguished from allen, who arc already prcsent and mcrely encounter an nnmigration oHicer in 

the course oflhe officer carrying ollthisrcgular dutie,. DeD,.' OPP'[1 App!. I'rdim. Inj. 17. ECF "<0. 

34 (quoting 8 U.S.C. ~ 1225(b)(2)(A)). Thcyassc111hat, whlle "~licns \Vllo arc present in the United 

Sl~lcs and ImH; not been admitted me deemed 'appliumts lbr admission' pursuant 10 I! USc. 

~ 1225(a)O), they arc not necessarily 'seeking admission' for purposes of[Slcction 1225(b)(2)." 

fd. at 17 ··1 R. Defendants contend tl1at the phrase "alien sceking admission" mealls only those aliens 

coming or attempting 1(1 C(1mc into the United Swtes at a port (1f entry. !d. at I R. The lourt tinds 

th~! the phra~c "'alien scding admisiiioll" in S.::clion 1225(h)!2)(A) is nOliimilcd to aliens arriving 

in the United States a.t a port orcntry. 

When construing a stanlle, the starting pom! shonld be the language of the starute itscll~ "I,)r 

'iflhc imclll of Congress is clear, that is the end of the matter.'" Al'i(Y. Mutase)'. 509 F.3d f,77, 6Rl 

(5th elL 20(7) (quoting Good Sall1orif<lIl HoI'/'. v. SI;(lla/(I, 50S 1l.S.402, 40910 (1993)). Because 

the meaning of eCltmn words or phrases "1113Y only become evident when placed in context .. , the 

words ofa statute must be read jn their context and with a view to their place in the overall starutoty 

-; Sen k~ Ora]l N l"A initiates rcmol.ial pr(x:ccding~ against an alien. ~r;,'e(! X L!.S.C. § 1::!,29: S e.ER. 

~ 239.1, Once nn N'I A is issued. the gn\>cmmcnt determines ~vhcthcr to detain the nliL"tl or release him on 

bond or his 0\·,,11 rccogni7Etncc. Tbe issu.es presented in this rase concern only the issuance of an NT;\ and 

dD not invol ve the dCClSlOl1 to detain an allen or release him nn hond or his. own recognizance 

Il 
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scheme." Nat'f Ass 'no/Home Bui/denv. Defimd"n' of"Wlidlifi!, 551 1.:.S. 644,666 (200?) (quoting 

FDA 1'. Brown & Williamson Tobacco Corp., 529 U.S. 120,132 (2000)). With respect to the I:'\A. 

the SccrctaryofHollldand Secllrity ha" the power to administer the slatulnrv scheme. which indlldcs 

the power to P8:% regulations elucidating specific provisions of the INA. See g USc. 

~ 1103(3)( 1 J, (3): s<'e all'!J Chevron. U.S.A .. hrl". v. Ndillrar ReI'. De{ Couneil, Inc, 467 US, Wl7. 

843 ·4,1 (1 '!~4). "[I]fthc statute is silent or ambiguous with respect to the speeilic issue." the court 

must determine if the agency has provided an interpretation or c1arilication of the statute. SC'C' 

Chevron, 467 U.S. at 843 44. Ifthe agency has provided such an intCJ1J[ctation, "the question for 

the coml is whether the agency's an,wer is based Oil a permissible construction ofthc statute." Id. 

at 843, 

Defendants ask the COUItt() c()nstrue Section 1 2251b l(2)(A I as only applying to aliens who 

arc coming or attempTing to como into the {jnilcd States at a port of entry. See OafS,' Opp'n App!' 

Prelim, luj. I it ECF ;-";0, 34. Defendants have Ilot provided the COllrt "'llh the slalUtory cm1SlruclioTl 

analysis thm would lead to such a cDnclusion.' Sec id. at 17-19. Accordingly, the COllI[ will 

proceed with ns own statutory constructlOn analysis. 

, Given their cursory analysis ofthc issue, Ille Court questions whether Defendants have sufiicielltly 

pTcs~nted the statutor} conl'ltrnC'tlon issue to the t\nHt for tlctcnnination. For cxampl c. Dcfcnd~mt~ mention 

in a t~)otnotc that Section 1225 typicillly applies to aliens encountered at a port of entry or ncar the border, 

"hilc Section l226 applies to aliens mcountc'Tcd ill the interior ofllle United Slates. but they do not prm·idc 

,italions to any sources tho.! wotlld lead the Coun to that conclusion. See Del;;.' Opp'!l i\ppl.l'relim. 

] 7 n.14. Def"t:mhmlS also state that the phrase ·'alien seeking admi~sion" ha~ heen inkrpretcu to mC'~m 

those aliens coming ornttcmpting to come into the lJnited States at n port of entry. " but they agaln fnil to cite 

any sources th.atwOlrld lead '[h.c (~ourt to tbntconclusion. Se{' id. at 1 g (inviting the Comt to compare Section 

1225(b)(I)(A)(i) with Section 1225(h)(I}(A)(iii), b"t prO\ iding no analysis}. In the Fil111 CircuiL a pClyly 

\\aives any ;S.stICS lhat arc inadequately hriefed. /.'lIited Swtes v ,vlanin,,:, 263 F.3d 436, 43~ (Stll C;L 

100 I): Rc:gmi c'. GmEalcs. IS7 f. Apjl'x 675. 676 15th Cir. 200S) curiam). The parties must provide 

cilatio"s to relevant authority in support oflhcirl'rop()sitions. See v.etkC"nl'd. 259 F, }\pp'x 664,666 

(5th elL 20(7). Given the importance of the issue, the Coml v~!llI address Defendants' arguments in spite 

of their minin1al analysis and citations, in support of their proposed con~trucril1n of Section i2.25(h)(2)(i\1. 

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The Coun lilld~ that Ihe language of the statute itself docs nmlimil1he application of Section 

l225(b)(2)(A) to aliclB coming or attempting to come inlo the United Stales al a port of entry. 

Section 1225(b) applies generally to "applicants i,)r mlmission," which includes aliens ··present in 

the Unlred Smtes who [havcjllot been admitted." S ES.C. ~ 1225(3)( I). (bl. Section I 225(h)( I) 

applies to [WO categories or aliens: HI'S!. "aliens arriving in the United Stares," and second. aliens 

\vho havc llotbccn admitted orparolcd imo the United Stmes and who haw not at1irmarively shown 

that they ha,'c been physically prescnt in the United States continuously for 1wo years prior to the 

datc that an immigration officer determines they arc inadmissible. Ed. ~ 1225(b)(11(AXi), (iii). 

Section 1125(b)(1) upplk" to a ,cpamle category of aliens, described simply a, "Dther alicm." Id. 

§ I 215(b)(2). Section 122S(b)(2)(/\.) states that "in the case of an alien \\<11D is an applicant for 

admissi<lll, ifthc examining immigration offIcer ,ictcnnincs that all alien seeking admission is not 

clearly mId beyond a doubt entitled to be admitted .. the alien shall be detained."' Id. § 1225(11)(2)(A). 

!'\olhmg in the language of Sccllon 1225 limib the application ofScclion 1225(h)(2)(A) 10 aliens 

who 8rc coming or attempting to come into the United Stales at a port of entry, and rhe Court has 

been tmable to locate a stature providing a dctiniuon of the phrnsc '"alien seeking admiSSIon." 

Because th" language of the statute it,>df does not shed light on The meaning of ·-alien seeking 

admission." tIle Court will turn to relevant regulations that the Secretary of 1I0mcland Secunty has 

promulgated in an cHolt w intcrprcr Section 12:25. 

Regulations located at 8 Cof.R. §~ 235,1 135.12 relate to Section 1225 of the INA. 

Defendant, rely specifically on 8 C.F.R. ~ ~35J(c) 10 ;uppol1 !lIcIT proposition thaI Section 

1225(b)(2)(A) applies only to alien, coming or attempting to C<1111C i11to the \; nitcd Stales ot a port 

of cnny S'ee Deis.' Opr'n Appl. Prelim. Inj. 18-19, ECF No. 34. That regulatiol1 states That "any 
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aniving alien I'.·ho 8ppears to the inspecting oniccr to be inadmissible, and who is placed in l'cmoval 

proceedings PW'SllaLlt III [8 USc. * 1229a] shaH be detained in accordance \.\. ith [8 CS.c. 

~ 1225(bl]." R C.F.R. § 2:l5.3(cl. An "aniving ali..:n" i, defined a, '"an applicant for admission 

coming or atTempTing to come into the United States at a pon of entry." R C.F.R. ~ 1.2. V.11ilc this 

regulation applies Section I 225(b) to "arriving aliens .. " it docs not limit the application of Section 

1 225(b )(2)(/\') to "arriving allen,. "y Notably, throughout the I:\A and related regulations. the terms 

"arriving alien" and "alien arr1ving in the L'nitcd States" arc used to refer to aliens cOll1ing or 

ancmpting to eOllle into the United Slates at a pon of cntry, If Congress intended 10 limit thc 

applicatioll o['ScctiOll 1 225(b)(2)(A) to aliens coming lJ[ attempting to come into the cniteli SWICS 

at a POlt of entry, it would have used the tC1111 "arriving alien" or "alien arriving in the United Swtes" 

i11skad of th", term "seeking admission." Because Congress has 110t d011e so, the Court rejects 

Dcfendants' proposed interprcmtion orScction 1225(b )(2)(A) and finds thaI Section I 225(h )(2)(A) 

applies to "applicants Illl' admission"-thal is. alicm who have not la\\'lully entered thcUnitccl States 

after inspection and amhorization by an immigration oflicer·--·whclhcr Ihcyarc arnving in the lJll!tcu 

States at 8 port of .:mtry or arc encountered by immigration officers elsewhere in the United States. 

Next, tho COlin must detcmline whether Section 1225ib)(~)(A) requires immigration ofliccrs 

to initiate removal proceedings (i.e" issue an l\TA) against aliellS who arc not "clearly and beyond 

'1 Ih~ ('Hun has also found several cases in which the ~n\·cnl1ncnt relied on SeCr1nl1 1225(b)(2HA) 

to ,justify the detention of aliens who were eDcouIlh.."fCd v"'hil~comil1g or alte1npting to come into the l;nileu 

Stales at a porr of ,)Let., e.g., B[wtisill I'. Sahol, ,%2 Supp. 2d 175, 377, 37~ (M.D. I'lL 2012); 

Nadarajah \. F3d 1069,1073, 1076 (9th Cil'. 2006): Mejia \'. Ashern/i, 360 F. Supp. 2d 647, 

649-50 (D.·" .. I. 2(05); Tineo 1'. ,/shem/i, 350 F.3J 3~2, 3R7-88 (3d eiL 20(13); Ferrel'Ll\' \. ,/silel'O/l, IhO F. 

Su.p!'. 2d (i17, 622-23 (S.1).:'-I.1" 2(){ll). However, the COUll: has been unahlc to jocale any stalutOl,), 

prOVIsions, rc:gulatinns, or c:ascs llmiting th~ application of Section I 22:S(b)(:!)(A) to alien~ coming Of 

attempti OJ; t(} come into the United Stmes at a pon of emry. nnd the Court finds it inapproprinre to imp''"c 

such a limitation. AgH!n. Defendants have not proYidcd the ('OUlt \viih citotiofl:-l to or suhstantivc annlysis 

of ndc'vant statutcf;., regulations., and case law that \\'ould support :mch a I il11it~ltion" 

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a douht emitlcd to he admitTed," or whethcrthc statute lea\'cs roOIll at that lcyel le,r the exercisc [11' 

pro,ccu\oriul discretion, 

b, Whether ~ lJ.S'c' § 1225(h)(2)(A) i~ Maml<ilorv 

PlaintilIs contend that Section 1225(b)(2)(A) creares a mandatory duty for immigmtion 

of'ftccn; to initiate removal proceedings against aliens who arc not "clearly and beyond a doubt 

entitled to he admitted."' B1'- Supp. Pls.' AppL Prelim, Inl, 5, Eel' No. 26. Plaintiffs assert that the 

INA eliminates ICE's discretion to enforce the immigration lows hccanse Section 1125 "requires the 

agency to enforce the Act [and] also sets forth specific enforcement procedures," Id at 6 (quoting 

Adams 1', Rk'hurdson, 480 F.2d 1159. 1162 (D.C Cir. 1973) (en bane)). DcJ(:ndtmts contend tlml 

the Executive Branch has long exercised prosecutori,,1 discretion in the immigration context, often 

ill the t(lt'Ill of deferred action, Deis.' Opp 'n Appl. Prd im. Ini, 5,,6, 14, FeE No, 34 (citing R~II() v, 

Am.-ArahAl1ti-Discrimil1a1irm Comm. t'AAADC,), 525U,S, 471,. 4R3,B4 (1999). Arizona v, Uniled 

Slalf's, 132 S, C1. 241J2, 2499 (2012), and Texas v, Ullil~d SllItf'S, 1 ()6 F.3d 661.667 (5th ell', 1997)), 

Defendants also assert that lhc word "shaB" docs not impose a mandatory duty 011 immigration 

otlkcrs TO illltimc removal proceeding;;. lJ at 19, 1911.17 (citing II1 I'L' E-R-iv! & L-R-i'v!.. 25 L & N. 

Dec. 520, 522 (B.LA. 2011), TowlT 01 Casrle Rock 1'. (;on211{es, 545 U.S. 748, 76() 112 (20051, ami 

Cit) ,,{Chi, t" Momlcs, 5:?7LJS 41, 62 /l,]2 (1999)), The COl111 finds that Congresss usc ofthc 

word "shall" in Section 1225(b )(2)(A) imposes a mandatory obligmion on immigraTion oflicc!'s to 

initiate removal proceedings against aliens they encounter who arc nol "clearly and beyond a doubt 

en1itled tD be admitted." 

The Supreme Court has 110ted that Congress' S llse of the word "shall" in a. ,tamle imposes 

a mandatory dUTy on an agency to acL Fed, Express em'I), 1', H%\l'ceki, 552 US, 3R9. 399 (2008) 

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(ciling 29 U.S.C. § 62')(0) and noting that "[t]hc [EEOC's] dUly to initiate formal dispute resolution 

processes upon receipt ora charge i~ mandatory in the ADEA conIne): LO{JG v. Davis, 531 U.S. 

2~O. 241 (2()Ol) (noting thai Congres,;"s WiC of the won.! "shall"' mdicates an intent to "impose 

discrctionkss ohligations"). In contrast. Congress's usc of the word "may"' in a stalurc merely 

imposes a permissive omy .. and it lesc'cs the agency with discretion to dctcllllinc whell rn act. Set' 

Lopcz, 53 I lJ .S. at 421. Application of these basic rules leads the Court to conclude that Section 

1225(b )(2)(A)'s usc OfU1CWord "shall" imposes a mandatory duty on immigration ofticcrsto initiate 

removal proceedings whenever rhey CIlCOUl\Icr "applicant' for admi,sion" who arc not "clearly and 

beyond a doubt clltltlcd to be admil1cd." See S Li.S.c. § ]~25(b)(2)(A). l';cvcnhelc~s. Defendants 

cite several cases in suppon of their proposirion that the term "shaH" in Section 1225(b)(2)(Al docs 

not impose a mandatory obligalioll 011 immigration "fficers, but instead leaves the decision to initiate 

rel110val proceedings subject to an immigrarion officer's pmslxutorial discretion. DetS., Opp'n 

Appl. Prdim. lnj. 13, IlJ. 1 'l n.17, ECF No. 34 (eiling Hedlerv. Chulle)" 470 U.S. 82],1'33 (191'5): 

in re E-R-i.1 & L-R-i\1. 25 I. & N. Dec. at 522: GOl1zales, 545 U.S. at 760-62; Mo/'{/IB.\·, 527 U.S. al 

62 n32). 

The Court acknowleclges that immigration law is an area of 13w where OIlS ami ICE have 

traditionally had discretion to prioritize their cntclrccmcnt efforts to promote the cnicicl1tusc ofthcir 

limited financlal resources and further their goal of ensuring public safety in the lJllilcd Stmes. As 

recently as last year, the Supreme Court acknowledged that "[a] principal feature of rhe removal 

sy"tcm i" the broad discretion cKcrci,cd by illllIllgratloll oHkiah" Arizona, 131 S. Cl. at 2499. 

"Discrctioll inthc cnil'l'CCl11cntofimmigration law embmces immediatc human concerns," including 

the dc,irc to be ncar one's fbmi1y. [111 alien', tics to the cmmmmiry, all alien's rnilitnry service, and 

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intclllational relations. rd. Concerns lhm .lustily cxccurive discretion in the crimillallaw context 

apply in the immigration lu\' conlext as well. Reno, S251'.S, aI489-9l. Gcnerally, the Executive 

must cllllsidcr"lhe strength orthe case, the prosccutio!1'sgcncra! delenencc ;aluc, the (;ov~'Tllmcllt 's 

enforcement priorities, and the case's rclatiomhip to the Government's overall cnfi)rccmem plan." 

ld. at 49(L Judicial review of cxccllti\'c decisions [(1 cnJnrcc criminal or immigration laws could 

rcsuli in unnecessary delays of proccedmgs, "chillling] law cnlorccnIl'llI by subjecting the 

prosecutor's lor immigration official'sJ motives and dccisionmaking to outside inquiry," and 

'\mdcrmin[ing] prosccutorial effectjveness." [d. The Supreme Court speaking generally with 

rcgsrd to immigralion law, has noted thm "Fellow! olliciab, as an initial malter, must decide 'I'hether 

it makes sellse to pursue removal at all," and ICE "may decline to institute proceedings, terminate 

proceedings, or decline to execute a tinal order of removal" "to Clmc1iomt.c a harsh and unjust 

ontcome." Arbma, 132 S, Ct. at 2499; R,~rro, 525 1;.5. at 4R4. The Supreme Court has also 

approved or ICE's utilization of '\lcficrrcd action," which may occur "at any stagt: of the 

administrativc process." R.cIIO, 525 U.S. at 484. Wink DHS and ICE generally have the discretion 

to deTermine when TO iniriate removal proceedings, the SllprCI11C Court has noted that "Congress may 

limit an agency's exercise of cnfi)fCCmCmpm'icr if it wishes, cirllcr hy scrring substantive priorities, 

or by otherwise drcumscfibing an agcnc(s po\vcr to discrimtnatc among issues or cases it will 

Jlursue." !Jecklcr, 470 U.S. at 833. TIle COllrt tinds Ihm COI1!:,'l'CSS, by using the mandatory tcnl1 

"shall" in SC'ctioll 1225(b)(2)(A), has circumscribed ICE's power to exercise discretion when 

detcrmining again;,t which "applicant:; for admission" it will initiate removal proceedings. Sec 8 

ES,C. § 122S(b)(21(A), 

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The COLIrt does not tind Defendants' cited cases where the word . 'shall " left room for 

discretion controlling. first. in In re E-R-M & L-R-M, the Board ofImmigrationAppeals found that 

the usc ortln: tU111 ",hall" ill Section 1225(b)( 1 )(A)(i) did not limit the proscclItllfial discretion of 

DHS to placc arriving alicll~ ill removal proceedings und.::r Section 12293, rather thall eXJicdiTcd 

removal pmcccdings. 52 T. &. "-i. Dec. al 5:'0. In lhat case. the government initiared remmmi 

proceedings against the respondents under Section 122'1a when they 31Tived m the United Stmes 

from Cuba. Id. at 52U 21. The respondents were subject 10 expedited removal proceeding' under 

Section J 225fb)( 1 )(A)(i), but they were also entitled to Semon 1229a removal proceedings under 

Scctiuu1225(b)(2)(A). Compare" ij,S,C. ~ 122S(b)(l XA)(i) ("'lfml immigration ol1kerdctcrmincs 

tIlllt all alien (other than an alien dcscribed in subparagraph (f)) who is arriving in t.he United 

States ... is inadmissible under [S]cctiOll I j 82(a)(6)«(,) or 1182 (a)(7) oftllis titlo, the ofticor shall 

order the alien removed n-om the l)nilcd States without further heRring or review unless the alien 

indicates eithcr un intention to apply fix a>yiuT1I under IS jcctilln 115X of this tltk or a rcar of 

persecution:'), li"ilh id ~ I2lS(b )(2 J(A) ("l [In the case ofan allen who is an a pplicantfor admisslOn. 

if the examining inul1lgratioll omeet" determines thm 3n alien ~cckil1g admission is not clearly and 

beyond 8. doubt entitled to be admitted, the alien shall be detained fur a proceeding under L S Jection 

122911 ofthi, title,"). The Immigration J uelgl' J(lund that it lacked jurisdiction over the Section 1229a 

removal pmcecdings because the rcsponc!cnl\ were subject to mandatory expedited removal 

proceedings under Section 1 225(b)( 1 )(A)(i). In re E-R-J1 & L-R-M, 25 L &. K. Dec, at 52 L 

Prcscnlcc! with mutually exclUSive lmmdatory provisions, the Board llfImmigrationAppcab 

vacated the Immigration Judge's decision and dctcmlincd that. when there is it choice between two 

avenues of removal proceedings, both of which contain the word "shaIL" the "shall" in Section 

I ~ 
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1225(b)( I )(A)(i) concerning expedited removal proceedings can be interpreted as "mav." Jd. at 

522-24. 

ln the pr.::scnt cas.::, Dirccti\c-cligthlc aliens would lilll under Section 1225(b)(2)(A)'s 

instmetion thm immigration otlicers "shall" initiate removal proceedings llnderScctiol1 1229a. Even 

ifDircctive-digiblc aliens were encountered upon arTival in the United Stares (perhaps after a brief 

departure ii'om the country) so that Sccllon 122S(b)(I )(A )(i)' s expedited removal procccdmgs would 

also apply, the Government's discretion could only be exercised to determine "hcthcr to proceed 

under Sec,ion 1 225(b )( I )(A)(1 rs expedi,ed removal proceedings or the removal proceedings under 

Section 1219a. Nothing in lille E·R·M & L·R·M suggcsl~ that DHS and ICE have discretion to 

refrain from initiating removal proceedings at alL 

In Heckler I'. Chafley, the Supreme Court found rhatthe Federal Food, DlUg, and Cosmetic 

Act's ("fDCA") scc,ion on criminal sanctions did not imp(1sc a mandatory dmy on the fooe! and 

[)rug AdminislJarion ("FDA", to prosecute every violation of the Act. eYeIl though the statute 

provided that "any person who vioiates the Act's substantive prohibitions 'shall be imprisoned ... 

or fined. "',170 U.S. at 835 (quoting 21 LS.C. ~ 333). The Supreme Court fonnel that this seemingly 

mandatory language did not require proseCUTion of every violation of the Act. "particularly since tlte 

Act charges the Secretary only with recommending prosecution," and "ru1Y criminal prosecutions 

must be initiated by the Attorney General." /d. The Supreme Court fi)tlfld that the Act's 

enforcement provisions. on the wilDie. committed "complete discretion to the Secretary to decide 

how and \~hcn they should be eKcrci'l'1:l." lei. The INA. in contrast. is not structured in such a way 

that DHS and TCE have complete discretion to decide when to initiate removal proceedings. Instead, 

Section 1225(b)(2)(A) of the INA requires immigration oflicers to initi3te removal proceedings 

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whenever They CIlCOW1[er applicanT~ 1ilr admission who ~rc noi "dearly and beyond a doubt emitled 

to be admitted," lUld nothing in Lhe INA or related regulations suggests that Congress's lise Dfthc 

term "shaH" imposes anything other than a mandatory duly, 

In Citv of' Chic-ago 1'. Morales, the Supreme Court addressed the constitntionality of an 

minois cilyol'dinanee [hat stated: "'\'11('nevcr a police offi ccr observes a person whom hcrcasonahly 

believes to be a criminal streel gang member loitering in any public place with OIlC or morc other 

persons, he shal! order all such pcrs.ol1s to disperse and remove themselves from the area." 527 U.S, 

at 47 11.2. The Supreme Court fOlllld that the ordm3ncc was llllconstilUlionally vague because it did 

not "provide sulrtCu:lIlly spceiJIc limit:; Oil the cnf(Jrccmcnl discretion of the pohee '10 meet 

cOllStitutional standards tor definiteness and clarity. ,., Ed. at 64. The Supreme Conlt also notedth,,! 

the word "shall" was not mandatOlY, because the City---the legislative body that drafted the 

ordinancc-----conccdcd that "police ofiicers must usc some discretiDn in deciding when and where to 

enrorce city ordinane,-,s," JeI. at 62 n.32. Similarly, in TOWIl o(Caslie Rock, Colorado \'. (ion=alel, 

the respDndent fired suit [mder 42 U.S,C, ~ 1983 alleging th8t the Town of CasHe Rock. C(Jlorado 

violated her clue process rights when 11s pol icc oiftcer;; t'11lcd to respond to her rcp0l1s that her 

estranged husbm1t1 had taken their children in violation of her restraining order againsT him. 545 

U.S, at 751, 754, Colorado law provided in relevant part: 

(3), .. A peace officer shall me every reasonable means 10 cnt'..,rce a 

restraining order. 

(b) A peace otl1cer shall arrest, or, ifan arrest would be impractical 

under the circumstances. seck a warrant tor the ,m'cst of a restrained 

person \I,hell the peace officer has information ul11cJUnting to probable 

cause that: 

(l) The rc,trained person has vi(Jlated or attempted to violate any 

provisiDn ora n;;,training order; and 

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(Jl) The rc,traincd person has been propc-rlyscryed with a copy of the 

restraining order or the restrained person has received actual notice 

of the cxi"tcncc aJld substance of ,uch ordL'r. 

(c) .. A peace officer shall enforce a valid restraining order whether 

or not there is a rccurd orlhe restraining order in the registry. 

Jd. m 752 (quoting Colo. Rey. Stat. § IS-Ii-X03.5(3) (Lexis 1(99)). The Supreme Comi found that 

this slamle did nol crcate a mandatory du.ty for police officers to enforce restraining orders. ld. at 

760. The Snpreme Court St3tcu that "I a I well established tf3dition of police discrerion has tong 

coexisted with apporcntlYlllandatory arrest ,tatlltes." ld. at 760. However, the Supreme Comtnotcd 

rhat the icgi;;lamre may override normal police discretion by provrdiJlg "a true mandarc[, which] 

would rCljllire ~Ol1lC stronger indication ... than 'shall u,c every rcasOlmbic means lD cnll)1cc a 

restraining order' (or eyen 'shall arrest, .. or .. seck a warrant'l." hi. at 760-61. 

The Supreme Court ill Cil,. or Chic'ago v. ,'"fond ... , was examining the city !)rdinal1cc to 

determine whether it prodded snfficie11l notice ofwhm cOllstilutcd prohibited conduct. ,\-forales. 

527 U.S. at. 59-60. The Supreme Court in Town 0/ Cwtle R(!ck. Colorado F. (iol1c:aies was 

examining the stamte to dctcnnine \\hethcr it conferred a property nght Jor purposes of the Due 

Proecs, Clanse of the fourteenth Amendment. GOIl2all's, 545 U.S. m 766. Here, the Coun must 

detenninc what Section 1225 requires and whether the Directive and rclamd proVisions of rhe 

MOlton 1>.-f cmorandum dIrectly conl-1iet with rhose statutory reqnirements. Accordingly, the Courfs 

analysis in the present case is different /'i'om the Supremo Court's analysis in ,'vfo/"a[e.\· and (;tJlI:",lics. 

Considering Section 1225 as a whole, the Court tincts that Congress has used language indicating 

an intent to impose a mandatory dllly onimmigmtioll ameen, in Section 1225(b)(2)(A). SpcciHcally. 

the statute sets out 11 detailed scheme f()rthc initiation ofrcl11ov!11 proceedings, Forcxmnplc. Section 

1 225(b)( I) 3.pplics expedited rcrnov31 proceedings ro particuJ8r aliens, while Section 1225(h)(2) 

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applies traditional removal proceedings to 3norJICr class of aliens. Compare X U.S.l'. § 1225(11)( I). 

\j,-illl id. * 1225(bl(2). Scctiom 1225(b)(2)(B) ,md (e) abo provide specific exceplions 10 the 

initiation of removal proceedings required by Section 1225(11 )(2)(A). OivCI1 the ose DC lhe 

mandatory tenn "shall," The structure of Section 1225(11) as 11 whole, and the defined exceptions to 

the initiation of removal proceedings located in Sections I 225(bJ(2)(B) ,111d (e). the Courtfinds that 

Section 1225(b)(2)(A) imposes a mandatory duty on immigration ofticers to initiate removal 

proccedings whenever they encounter an "applicant for admission" who "is not clearly and beyond 

a doubt .::mitlcd to be adml!tcd:' 

c. 'Whether the Court Call Still Uphold mIS's Discretion 

When the Executive "lakes measures incompatible wtth the expressed or implied will of 

Congress, his power is at its lowest ebb,." and "[c·jourts can sustain exclusive [executive] contml in 

such a cfl';c" only iftllat particular subject rnattcr "is within [the Executive's] d.omain and beyond 

control by Congmss." Yowwsiown ShC'el & Tune Co. v . .'lawver, 343 U.S. 579, 637-4() (1952) 

(Jackson, J., concurring). Because Section 1225(b)(2)(A) expressly requires immigration omccrs 

TO initiate removal proceedings against applicants for admission who arc not "dearly 3J,d beyond :1 

dOllbl entitled to be admitTed," the Court can uphold DlfS's discre1ion to refrain from initiating 

removal proceedings under those circumstances only ifCongn::55 docs not have power to legislate 

in the area of immigration law with regard to the remo",,1 of ,,1 iens. 

Congress's power over immigration is rooted in the Constitution, is inherent in the powers 

ofso\'crcign nations, and is lm incident ufintcrnatiollullaw. U.S. Const. art. I, § 8. d. 4 ("The 

Congress shall have power. , . [t]o estahlish an cmiform Rule ofNatumlizatiol1. and uniform Laws 

on the subject of Bankruptcies throughout tire United States."); Chae Chan Pillg r. Unilcd Sillies. 

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130 U.S. SR 1,601···07 (1 RR9) (,'That lhe govemmcnl oflhe United States, through the action oflhe 

lcgi,lativc departmcnt, can excludc alien; Ji'olll it, Icnitory i, a propo,ition which we do not think 

open In controversy,"): Nishimura Ekiu \. [JllilcdS/ales, 142lI.S, 651,659 (1892) C'Il is all accepted 

maxim ofintcrnmionallm.\-" that cycrysovcrcigllllatioll has the [lower, as inherent in sovereignty, and 

csscntialw sdJ~prcscrvati(1n, to forbid the entrance ol"foreigncrs wiThin its dominions. or to admit 

lhem only in such cases and upon slleh conditiolls a, it may sec lir ro prescribe."): FOil!!, Vue Ting 

\'. United Slales, Ifl9 U.S. 691( 707 (IS9]) ('"The right of 3 nation to expel or deport foreigners ,,·ho 

have not been naturalized, or taken allY stcjJs towards becoming citizens of the country, rests UPOIl 

the ~amc grounds, and is as ab,ofulc ,mll unqualified, as the right to prohibit ,mel pn:vent their 

entrance lmotlle country,"): Harisiades 1', Shallgliness!', 34'2 u.s. 5RO, 596-97 (1952) tTrank/iIrtcr, 

L cOl1curring) ("The conditions for entry of every alien, the particular classes ofalions that shall he 

denied entry altogether, the hasis tor delel111iuing sHch classification, the right to tClTl1inatc 

hospitality to aliens, [and] tbe gronnds on which such determination shal! he ba~ed, have heen 

recognized as matters solely for thcrcsponsibllity oflhc Congress. , , ."): Arizona, 13Z S. Ct, at 2498 

("111e (Joycrnment onhc entIce! States h3S broad, undoubted power over the subject of immigration 

and the status of aliens.'"). Congress unquestionably has rhe ahility to kgJslare in the area of 

immigration law \vith regard 10 the removal of aliens, Because immigration law IS not "within [the 

ExeCUTive's] domain and beyond control by Congress," Congrcsshas the abiliryto eliminate DIlS's 

discretion with respect to when to initiate removal proceedings against an alic11, and DHS cannot 

implement mea.s lIrcs lhat arc Incompatible with Congrc"ional intm1. 10 See Heclder, 470 L".S. alS33 

10 At the April X, 20 L1 hearing, Defendants ass~rtcd th3( '"as" statutory matter" Congress has the 

ability to require every i mnligrntion (1fticcr that 0l1COUmCrs an alicll who i:-; not -"clearly and beyond a doubt 

entitled to he adlnitted"' to issue an ~T,A to s.uch alien. but Congress l11~ly not have the ability to do so ""as 
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("Congrc" may limit an agcncy's exercise of' cnforccmcl1t power if it wishes, either hy setting 

,ubslanllvc priorities, or by otherwise circumscribing ,Ul agency', power to discriminate mnong 

iosucs or case'> it will pursue:'). 

Because Congress has thcpowcrro legislate in the area of immigration law and has expressed 

irs intent to requirc the initiation of removal proceedings against aliens when the requirements of 

Section 122S(b)(2)(/\l arc satisticd, the Court linds that mIS docs not have discretion to re[nse to 

initiate removal proceedings \vhen the requirement, of Section 1225(b)(2HA) arc satisfied. 

However, Dl-IS's ability to cxcrci;;c its discretion at lalCr stages in the removal process by. for 

cx<unplc, cl111cc!ling the Notice to Appear or movmg to disTllis~ the removal proceedings, is Bot at 

issue in the present case, and nothing in this Order limits DHS's discretion at later stages ofthc 

removal rrocc,s, Sec i{ C.F.R, § 239.2(a)(providing /,)rcanccllatiol1 ofa 1\ioticcto Appear prrorto 

jurisdiction vesting with an imrnigmtioll judge); id. § 239.2(c) (providing io)' a motion to dismiss 

removal proceeding, afteriunsdicliol1 vests with an illl11l1gmlion i~c!gc): III re (i-lV-C, 22 L & N. 

Dec, 281,283-84 (B.!./\, 19'1S) (noting that, pursuant to R ("F,R. § 239,2(a), an irrunigration otIlccr 

"authorized [(l issue a Notice 10 Appear has complete power to cancel snell Hotiee prior to 

jurisdiction vesting with the Immigration Judge"). Through the exercise of discretion at these later 

slages in the removal proceedings, DIlS appears capahle of prioritizing its fCmoval objectives and 

conserving its limited resources. 

a cnn2i.tituti unal malicr.;· SC(! Hr~g Tr. Dcfcndlun::.. argued thiJt Cnngrcss 1111 ght not ha\tc the ability to impo::iC 

such a mandatory duty "(Li;j a con~njmtional mattcr"hccnusc (\mgTCs.~'S j1Tlplcmentarkm ofa mandatory dlH) 

might infringe on the Execlltivc·s ability to u:o..c its discretion in the immigratiDn la\\, context to ·'take CarC' 

that the Laws he faithfully cxcctUcd," Jd.;ICi' U,S, ClOSt. art, II, § 3. The Cuurt finch rhis argument 

UJ1'lV[JliIiJlg i~ivcl1 the Supreme Coun ~s rcc;ognition of Congress 's hroad PO\.\/C'1' 1n th.e arcaofimmigl"ntion la\v. 

liLA. I.e. (dis.cussing congrcssi-onal power in the area of immigr::Itinn lal,',:). 

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Having dctCtl11incd that R n.S.c. S 1225(b)(2)(A) requires tllC initiation of removal 

proceedings whenc~cr lUl immigration oi11ccr encounters an "applicant for admission" who is not 

"clearly and beyond a duubt elltitled [0 be admitted," the Conn now tums to the iss lie of whether 

relief is available under the Declarmory Judgment Act. 

2. Declamtory judgment Act 

Plaintiffs ultimately seck a declaratory Judgment 10 [he effect [hat [he Directive and rcImcd 

prmismns of the Morton Memorandum arc Ilnlawful and in violation of various statulcs and the 

Constinltion of the United States, along with 3n in)tll1ction preventing Defendants ii-om 

implemcllling or cnillfcing the Directive OJ taking ,my adverse action against Plainlills fbr nol 

following the Dirccthc. PIs: Am. Compl. 'If'lf A-F, ECF \:0. 15. Tile Declaratory Judgment Act 

provides: "Tn a case of actual Cclntrovcrsy within its jurisdiction, . , . any court "fthe United States, 

upon [he filing of an appropriate pleading, may declare the rights and other legal relations of any 

interested party seeking slIch deciaratIon, whether or not [lHther relief is or could he sDught." 2H 

L:.S.c. § 2201(a). The Dedaratory Ju.dgmcnl Act is not an imlcpcndcnt source of subject matter 

Jurisdiction, but merely provides additional remedies. SCI' Em'lIesl v. L01l'1'1I1rirt. 690 F.2d 119~. 

1203 (5[h Cir. 19H~) It permits an award of dcdaratoryrclicf only when there j, another baSIS lor 

jurisdiction present. TTEA '-. F,[cta del Sur Puehio, Ixl F,3d 676, 61'11 (5th Cir. 1999). The 

exiSTence of an ""aemal conu'ovcrsy" itl a constitutional sense is necessary to sn~tain juriwlct10n 

underthe Declaratory Judgment Act. Al!inU Lire Ins. Co. v. Haworth. 300 U.S. 227,239 40 (1937); 

}lal 'I Rille Ass 'n 0(04111. v. Jfagaw, 132 F.3d 272, 279 (6th eir. 199i). The district courtmusl 

determine "whether the facts allcfl,ed, under all the eireumstmtces, show that there is a suhstantial 

contrm'crsy. hetween parties having ackersc legal interests. of sulTiciem immediacy and rcalily to 

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warrarn the issuance ofa dcc1aratoryjmlgmcnt" AIC'dfmnllllle, fne. I'. GCJU'nlcI'h, flU'., 549US. 118, 

127 (2007). The plamtilT 11111:'( have sufli..~·ccl "an invllsion or a legally protected interest:' which is 

"tTallitionally thought In be capable ofrcsnlutiolltbrough theiudicial pmc",,:' and lS currently rEt 

for iudicial rcyicw. ,'vfagaw, 132 F.Jd at 280 (qllotingLu;rln i. TJe/el1d<>rs ofWildli/<? 504 U.S. 555, 

560 (l992), and Flt/sll'. ColiC/I. 392 CS. ItL 97 (196~)). 

The Court pro ionsly dctcl1nincd that Plaintiffs have suftcrcd an ilwasinn of a legally 

protected interest thai is capable of resolution throngh the jndicial process, becanse they face the 

threat of disciplinary action if they issue all NTA to a Directive-eligible alien." Sec Order 18 24, 

2211.5, Jall. 24. 2013, ECr No. 41; .ICC ({!so PIs.' Am. CompL~' SO .. ECr ~o. 15; App. Pis.' Resp. 

II The Code of Pcderul RogulatiollS proyidcs ,hat "["lny immigration officer, 01' supervisor d,crcof 

performing 011 inspection of an arri\'Lng alien at a port~n[~cntry may' issue a notice to appear to slich alien." 

s: C.F.R. * 239.1 (a). in adJition~ a spt.~d:fk: lb.t of'·nfficL-'Ts, Of offk:crs ~H.:liIlg in ~uch capacity. may issue a 

!}micc io appear" at locations other than a port-of-cuu·),. fd. llnmigration enforcement agen.ts and deportation 

officers are nor specifically listcdas havingaurhority to issue NTAs. See generally id. Ho\vl';\,er7 subsection 

41 staws that ''[0 ]Iherofflcers llf£mployees uflhe Department or ortne Urritcd States ",ho arc delegated tho 

authority as prlwidcd hy g Cr.R. 1.2 It> i,;sue "mice,; 10 appear" may issue !\iTAs. Id. S 23\1(3)(41). II, X 

C.F.R. § 235.6. the Secretary oflJIIS has specifical1ydelcgat~d "inllnigration officcn;" the autbority to issue 

a Form 1-862. which is an NTA. "filj~ in accordance" ilh the provisiuns of [8 U.S.C. ~ 1 225(b )(2)(A)1, the 

exnrnining immigration officerdctains .lnalien fCH'aprocecding before an imrnigration judge ul1dcr [t<; t;.S.C. 

~ 1229a1." 8 C.f'.R. ~ 23S.6(u}(l )0). 1hi~ regulation spc-dficnlly gi,,~s ilnmigrmion I:nfon:cmcntagcnts and 

dl:ponatinn officers the: authoriry to issue ~TAs in the circumstancc~ described in Section 1225(b}(1)(t\). 

See g C.F.R. ~ 1.2 (dl."fining the term ··imtnigratioll uilicer" to include itnmigration enfi.}fL"\:."1nent agents amI 

d~portation oft leers). 

Detendants <iSscrt that Plaintiffs arc not harmed hy the DircCllYC and related pmvi s!ons of the Mmton 

;\'·-1emorandum hecause irn.migration enforcement agents llnd deportation officers are not. m:c!hnri7Cd to issue 

NTA,. Dd,.' Opp'n Appl. Prelim. Inj. 10. ECf Nu. 34. At the heoring on Plaintiffs' Applicatilm j()r 

Preliminary Injunction. DQf{;ndants presented a December 5.1011 \'Jemorandum by Gary ~vlead discm;,~ing 

the delegation of authority 10 is,~1Je NTAs. 5,<ee Gm. 't Ex. 4 ll\..'1eaJ .:\'Iemoranuam). How~ver, this 

memorandum relates to Section 2H7(~) tlf!rcements \~'lth state gCfvCrnnlents and is iOflppl icable to the i s~ucs 

presented in the present case. S'l!cger},(!t'alh: id. ~ set' also H U. S.C. § 1 ~57(g) In their oppositil.U'liO rlaintift~' 

Applicatioll fm Preliminary Jnj "lleti"n "nd at the Apri 1 ~, 2013 hearing. Dd'cmlants provided no authority 

indicmingtha1 immigration cnt(),l'ccmcnl agents and deportation ofliccrs do not have authority [0 i~suc NTAs 

jlursuant to Scetion I 225 (b)(2)(A). See gl'llcmllr Dd,' Opp'n App!. Prdim. Inj .. Eel' No .. ,4; Hr'g Tr. (At 

the April R: 20U hearing., the Court i;!a\-C' the parties as much tin1C as the) thought they needed to present 

their arguments and supporting authority.) 

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Mot. Dismiss Ex. 3 (Doebler MT.) 0;';[2-9, EeF 1\0.31; ill. Ex. 2 (Engle AfT.) '1:';[ R. 20; Dds.' Opp'n 

Appl. Prelim. Ini. Attachment G (Ellis Decl.), Ex. I3 (Doebler Notice of Proposed Suspension), EeF 

;-';0. 34-7: id. Allachmeni G (Ellis Ded.). Ex. C (Doebler Decision 011 Proposed Su:,pcmion). 

Accordingly, the only thing left 10 determine is whcchcr the issues arc currently fit for jndicial 

review. 

In Ahbol1 Lahoratories v. Gardner, lhc Supreme Comt permitted the petitioner dmg 

compal1lcs ami their association to challenge regulations promulgated by the Commissioner otTood 

and Drugs designed to .implement labeling pro,·isiollS of the Federal Food, Drug. and Cosmctic Act. 

387 U.S. 136. 15~ (1967). TiIC Supremo Court. hddllml the issues prcselllcli wcre "apPlOprimc for 

judicial rcwlurion at this time" becanse "the iss\le tendered was a purely legal onc ," and "the impact 

ofthe regulations upon the petitioners [was1 sufficiently direct snd immediate:' Id. at 14R, 152. nlC 

Supreme Court allowed the peritioners to pursue relief under the Declaratory Judgment Act even 

though none of them had been prns,~clltcd Cor tililufC to comply with Ihe challenged rq.,'ldatilln~. 111. 

at 152--54; sec a/so Thomas v. Union Carbide Agric.l'rods. Co., 473 U.S. 568, Sf\! (1965) (fmding 

claHns sutlicicntly ripe t"r .iudicial rcvimnvhcrcthc issues im'olvcd pmcly lega! questions and the 

threar of haml was "certainly impcnding·'). 

The Conn tinds lhe present situation analogous to that presented in CiardnCT. Plaintitls' 

calise, of action require an analysis of whether the DIrective and rdated portions of rhe 'Ii!orton 

'lilcmorandum arc consistent with (I) federal law, (2) the scparation-ot:powcrs doctrine. (3) the 

Executive's duty Lllldcnhc Constitution to (ake care thaI the laws arc Itlitblhlly executed, and (4) the 

Administrative ProcednrcAct. Sec PIs,' Am, Com!,!. 'ft;(i7-80, 92-116, EeF No. 15. These,allsos 

of action present primarily legal issues thm are the appropriate subject matrer of a dec Juratory 

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juugment action. Aduitionally, the impact of the Directive and related ponions of rhe Morlon 

Mcmllnmuum is "suJ1lciclltly uirect and immediate," bccaw,c Plaintil1s face the threat of disciplinary 

aclion iflhcy issue an NTA to a Directiye-eligible alien. See Order lR-24, 22 n.S . .Tan. 24.2013, 

ECF No. 41: see also Pis." Am. Compl. ~ 50, EeF Nt). 15; ApI'. Ph' Resp. !v!"t. Dismiss Ex. 3 

(Dt)chlcr AfT) or: 2-9. Eer \10. ] 1: !d. Ex. 2 (Engle Air) Yi'li!( 20: Dcfs.· Opp"n Appl. Prelim Tnj. 

Armchmcnt (j (Ellis Decl.). Ex. B (Dt)cbler '>olice of Proposed Suspension), Eer "'0. 34-7; id. 

Attaehmcnt (j (Ellis Dccl.). Ex. C (Doebler Decision on Proposed Suspension). Accordingly, the 

Coun fjnds that tile issues presel1ted arc "lit for jlldicial rcvic\\'," and relief purslwnt to the 

Dcclamtory Judgment Act is available to Plaintills." The Comt will now tllrn 10 the issue of this 

Coun's jurisd ietlon undcrthc: Administrative Procedure Act [0 review the Directive and the Morton 

Memorandum. 

J. Administrative Pmccdure Act 

I'laintiff~ argue lhat the 0 in:;ct! vc and related provisions of the Morton M.;rnoTandulll violale 

the Administrative Procedure Act ("AI'A") by conferring a bCllditlYlthout appropriate rCb'lJlatory 

implementation Br. Supp. Pis.' Appl. PrelIm. 111J. 15 22. ECF "'0. 26, Specifically, Plaintiffs 

contend that the Directive's estahlishmcnl of CTHeria for cxccptlon fi'orn rCITI(1\al and definition or 

a ch~s with aftirmativc eligibility tl)1" benefits is essentially a "rule" under the APA that must be 

promulgated through the t,xmal mlcmaking procedure. Jd. at 16. Piaillliff, argue that hccause the 

U \Vhilc the Court has, fOl!Tld that reI lcf pursuant to the Dccl~u'atory An is availahle to 

Plaintiffs 011 all their rcm<Jining {;HUSCS of actinn, this Order nnl), ilddn.::sscs the of a preliminary 

inj U11ctjon t1ascLluo Plaintiffs' likelihood of success on the 'mcrit~ of their tIna and ~L~th cause;.;; 0 f actil1n. 

See PIs.' Am. CompL ~'~167-73~ E{]"" No. ]5 (as~crting that the Dir,,-~ctive and rdated pro\'isiDn~ of lhc 

Mmion Mcmomnchull \oiolntc fcdcml Slmutes requiring the initiation of removal pmcecdingsl: id. 1;~: II {}-16 

(asscning that the lJirccti\,c and related l"!'ovisions of the ~lonolll\·'kmorandum violate th<.:! AdJuinistrativc 

Procedure Act). 

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Secretary of Homeland Security hm; not complied with the APA's rulcmaking proccdllfc. the 

Directive and Morton '\;icmoramlum violate the APA. Ddi:l1dllllb argue that this ('(!UrI lacks 

jUllsuiclillll 10 rcv!cI·1 Plaintilll;' APA claims because the deci,;ioTl whether to inili<lte removal 

proceedings is 0 maner committed to agency discretion. Dds.' Opp'11 Appl. Prelim. Ini. 12-16, ECF 

\10. 14. Defendams also conrcnd that rhe Directive am1 Morton Memorandum reflect gcneml 

statcments of policy by the agency, which arc not subject to nolice [md comment anel The 

requirements of the l1.l1emakmg process. !d. at 2 I. Dcf~tHlanls additionally argue Ihat the Directive 

and 'v\orton McmOralldmTI do not cOllfer allY benefits. but simply provide guidance on situations 

where ddi:ncd actioJl would be approprmtc. 

a. Whether the Conn Has Jurisdiction Under the APA 

The Court must f;I~,t address its jurisdiction to review the Directive and the Molton 

Memorandum undcrrhc APA. Defendants argue [hat this Conrl 18cb .jurisdiction hecause the INA 

grants hroad discretion to the Ex.:cullvc Branch. including the decision to illltla!c removal 

proceedings. Dds.' Opp'n App!. Prelim. lnj. 14, ECF No. 34. Plaintil1s recognize that the 

ExeCUTive Branch has discretion to deTerm inc its immigration 13\\- CnT(lrecment priorities. but they 

comcnd Judidal review is available in theprescllI case because Congress has cxrlicitlyrcmovcd rhe 

Executive's discretion to iniriar:c removal proceedings in 8 ES.C. § 12~5. Pis.' Reply Appl. Prelim. 

uli. '1 6, Eel' No. 36. The Court finds tharinrisdiction exists to review the Dircctlvc and rdared 

provisions of the )I,-IOItOI1 ?>.1cmoranclum. 

The Supreme Court address eel "the extent to which a decision of an adminislTlllivc agency 

to exercise its 'discretion' nol to Lmdcrtake certain cnfOrCC111Cilt actions is suhject to iudiciol review" 

under the APA inlfedler, 470 U.S. at R23. TIle APA's provisions for judicial review ofagcncy 

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actiol1s arc conmined ill 5 ns.c. §§ 701·706. See id. at 82l1. "Any person 'adversely affected or 

aggric\·ctl' by agency action ... , 'illcluding a failure to aCl,' is entitled to 'judicial review thcrc01:' 

as long as the action is a '1inal agency action lor which there 1S no other adequate remedy in a 

court D' hI. (quoting:; 1:.: .S.c. §~ 702,704). Section 706 governs the standards a court is to apply 

when reviewing agency actions. See 5 FS.C. § 706. "But hefore any review at alll1111Y be had, a 

party must Hrst cleM the hurdle of ~ 701(3)." Hecklcr. 470 U.S at sn Section 701 srates that the 

chapkr on judicial fe, iew "applies, accoruing to the provisi(ms therene except to the extent that--

11) STaUnc, preclude judicial review: or (2) agency action is committed to agcllcydiscrctlOJl by la,v.-' 

5 U.s.c. ~ 701(a). Wllrn the statute at i",uc docs Hot cAprcssly preclude judicial reliew or agency 

actions, the courimnsr analyze whethcrilldicial review isavailahlc llnder Section 701 (0)(2). "'[E]vcll 

where Congress has not affirmatively precluded review,. revicy.' is not to be had if the statute is dmwn 

so that a court would have no meaningful standard against which to judge the agency's exercise of 

discretion." HC'dder, 470 U.S, al 830. All agency's dccbioll not to take enforcement action b 

"presumed immune li'om judicial revic,v under * 701(a)(2)'-' Id. at 832. H owcver, this presllmption 

may be rebutted "where the substantive statute has prm,"idcd gllidelines fc1[ the agency to t<,lIow in 

exercising its enforcement powers." Id. at K12 33. If Congrcss has "indicated an intent to 

circUlm;cribe agcncycnforCclllcnt discretion, and has provided meaningful standards tor cicttlling the 

limits of that di~crction, there is 'law to apply' Ul1dcr ~ 7D 1 (a)(~). and eomts may require thar the 

agency toll ow that law." Id. at 834 35. [f Congress has not dOlle so, "then an agency refusal to 

institute proceeding" is a dcc!,iol1 'committed to ~gcncy discretion by law' within Ihe mcanillg of' 

Section 701 (a)(2J, Jnd judicial review is unavailable. rd. at 8.15. 

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Tn Dunlop 1'. Bat'ilolFsid, a union employee brought ,Uil under the Labor Management 

Reporting and Disclosure Act ("LMRDA') asking the Secretary of Labor 10 invc,tigatc and Jile suit 

to ,ct a,ide a union electIOn. 421 I:.S. 560, 563-64 t 1975). The UvlRDA pro v hIed [hat, U[10U filing 

ofa complaint by a union member, "[t]hc Secretary shall invcstgatc such complaint and. ifhc finds 

probable cause to believe thar a violation ... has occurred ... he shall. . bring a civil action. 

29 li.S.C. § 4~2. The Supn.'mc Court held that judiciall'Cvlcw oflhe Secretary's decislOll not to 

bringa civi! action wasavailablc, bccause ''the language orlhe LMRDA indicated that the Secretary 

was required to llIe suit if certain 'clearly defined' f3ctor5 were present." Heckler" 470 U.S. at 831 

(quuting Buci1mLlAi r. Brennan, S02 F.2d 79" 87·-88 (Jd Cir. 1974)): see Dunlop. 421 U.S. at 

567-68. The statute at issue in DUlllop "quite clearly withdrew discretion from the agellCY and 

provided guidctincs fi)r oxen:isc of its enforcement power." Heckler. 470 U.S. at IG4. Thcrcfill'c. 

judicial review was available. lei. 

In Heckler l'. Ownc)', the Supreme Court addreshed the extcnt to "-hi,,h dCICrtllllmtiol1s by 

the Food and Drug Administration ("FDA "j not to exercise its enforcement authority over the usc 

ofdlTlgs In intcrsmtc commerce may be Judicially reviewed. ld 3t82H. The Federal Food. Drug, 

and Cosmetic Ac[ C'FDCA"') contained a general enforcement provision providing that '''ltJhc 

Secretary is mllltO/·iced to conduct examinations and investigations. ..'" Id. at 835 (quoting 21 

U.S.c. § 372). The provision addressing injunctions provided "no illdicarion ofwhcn all injunction 

should be sought" and the provision prodding for seizures of offending food, drug. or cosmetic 

luticles stated thut (he oJlcnding items "'shall be liable to be proceeded agains!. '" ld. (quoting 21 

U.S.c, §§ 3,12, 334). The provision providing for criminal sanctions provided that "any person who 

violates the ACT', substantive prohibition;; . shall beill1prisol1cd ... or fined.'" 1d. (quoting 21 1:.S.('. 

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§ 333). The Supreme COLli'[ held that this lnnguage did nm mandate criminal prosecution of' eVC1}' 

pCr'l>l1 who violated the fDCA, "particularly since the Act charge[cl] the Secretary only with 

Iccornmclll1ing prosecution," a.nd any criminal prW;ccllttOIlS had to be iniLiatcd hy the Anomey 

General. Jd. Unlike the smtule at issue in DIII1/op, the smtule in Heckler did not "clearly [withdraw] 

discretion finm the agency and providc[] guidelines for exerci,e of its enforcement power." ld at 

834 ·37. 

In the prescnt case, Plaintifts arc challenging OIlS and ICE's decision not to issue NTAs and 

initiate removal procc;:dingi> against aliens who satis(v the criteria set out in the Directive and the 

Monull Memorandum. Because the INA docs not cxprcs,ly preclude judicial review over the 

agency's decision 1I0t to initiate removal proceed.ings, the Court must determine whether there is 

"!aw to apply" und.er Section 70 I (a)(21 so that the Court has jurisdiction "to require that I'll" agency 

follow that law." See Heckler. 470 US. at 834-35. The Court tinds the statute at isslle in the 

pn:~cnl case akin to the one at issue in nUIl/op. 

As di'>cusscd prcviollsly. the Court linds that Section I2:!S(b)(l)(A) clearly defines when 

insjJecting immigration oflicct's arc required TO initiarc rctlloval proceedings against an a(ien, SIYe 

supra Part lILA. 1. h. Congress has lJ sed the mandatory term "sha H" to dcscri be ill11l11g1'3tion onieers' 

duty to miliarc removal procecOlngs, and the staUlte sets out 11 detailed scheme t()t' when initiation 

ofrcl11o\~al proceedings is required." Compar(' II L;Se. ~ 122S(b)(I) with ill § 1225~hl(2). The 

silecitlc exceptions to the initiation of removal proceedings required by Section 1225(b)(2)(A) 

At the hearing on Plaintin~~ Applkation for PrelimLnary Injunction; Defendants did not dispute 

thatlhc Usc of the term "shall" is lypically used to impose a 111lU"iotory dm),. See Hr'gTr. Howe,cr. 

Dofcmlams argued ,11m Section 1 225(11)(2)IA) did 00! provide spocific enough standards to remove DHS', 

{Ii~cretion. with reg~lrd to \vhen to i11ltiate rcn10va! pmccedil1gs_ Sec id. 

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furthcrdcfincwhcnirl11TIigrationo11icerslllUstillitiate removal proceedings. Seeid. § I 225(b)(2J(Bl, 

(C). Given the lISC of lhe mandatory term "shall," the slructure of Section 1225(b) as a ~'holc, and 

the defined exceptions to the mitiatiol1 ofrcllloval proceeding, locatedin Sections 1225(b)(2)(Bj and 

(e) .. the Court finds that Section I 225(b)(2)(A) provides clearly defined factors for when inspecting 

immigration officers arc rcqninx110 initiate removal proceedings against an allen .. jllst as the sTatute 

at isslle in Dunlop prov'idcd certain clearly dcllned factors for when the SecreTary or L~bor W3" 

required to tile a clvil3Cliol1. See lIeckl"r, 470 U.S. at 834 (quoting Bacholn'kL S02 F,2d at g7 g~); 

DUlI/Op, 421 U,S. ar 567 68. Accordmg!y, tile Court find;; that there IS "law to app];l' so thm 

judicia! review is maIlable to ensure that DHS complies with the law pursuant to 5 C.S,C 

~ 701(a)(2). See HecA/cr, 470 U.S. at 834-35, 

b, Whether Plaintiffs Arc Entilkd to Rc1icfCndcr the APA 

Having tound that Plaintiffs have cleared the jurisdictional hurdle of Section 70\ (a), thc 

Coun must now determine ir Plainliffs arc entitled III rdief pursuant to the APA, As stated 

previously, "[a lllyperson 'adversely affected or aggrieved' by agency action. , , • 'including a failure 

to act.' is emitled to 'judicial rcviewthoreof,' as long as the action is a 'tlml agency action for which 

there is no other adequate remedy in a court.'" [[ecklEr, 47(J l;.S. at 82X (quoting 5 USc. §~ 702, 

7(4). Once those statutory requirements arc satisfied, U1C court rCV1C\\~ng U1C agency's action shall: 

hold Ul1laWnli and set aside agency action. findings, and conclusions 

found to bc--

(A) arbiu'ary, capricious. an abuse or discn:ljoJ1. or otherwise not in 

accordance with law; 

(B) contrary to constitutional righL POWL'f, prJ-ilcgc, Dr inmlllnity; 

(C) in exccs~ or statutury Jurisdiction, authority. or limitations. or 

short of statutory right 

(D) without observallce of procedure required by h1\\; 

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(E) unsupponed by subManlial evidence in a case suhiect to 

[S]cclions 556 and 557 of this litle or otherwise rc\ilOwcd on the 

record DIan agency hem-ing plOvided by slalule; or 

(F) unw3t-rantcd by thc facts tn the extent that the facts arc qubjcct to 

tria! de IlOVO by the reviewing eOUli. 

5 U.S.c. § 706(2). 

The Court has already dctermined that Plainlitls arc ad,-crscly affected or aggrieved by the 

Directive and Morton Memorandum. S~t Order 21--22, Jan. 24, 2013. EfT ?--lo. 4 L For agency 

actIOn to be "finaL" two conditions must be satisfied_ BCI11letl \'_ Spear_ 520 U,S_ 154.177 (1997)_ 

"First, the action must mark the 'consummation' of the agency's dccisionmaking process it must 

not be of J [!H.-rel}, tentative or interloclitory nature:' Id. at 177 .... 78 (internal citation omjtted). 

Second, "the action must be onc by which 'rights or obligations have been determined,' or from 

which 'legal conseqnences will t1ow,'" ld. at 17H (quoting Purl ,,(Boston !lIarirlt' Terminal As, '/1 

v. Red('ri£lkl1eho/al,;e/ Tral1sar/anlie. 40() C.S. 62, 71 (197())), 111e Comt finds Ibm the Directive and 

related provisions of the MorlonMomllrallliuT11 arc sumcicntly flnallo wU.Inllll judicial review. First. 

OIlS has already begun implementing the Directive and related provisions of The Morton 

l\kmorandulll by grantmg deferred action [0 individuals who s8tist~' rhe criteria set f,xth in The 

Direcliw_ See Pls_ Ex_ 10 (Deferred Aclion for Childhood AITiYats Process); Pls_- Ex_ 14 (;\;at'l 

Standard Oper~ting Procedures (SOP) Deferred Act.ion for Childhood Arrivals (DACA)). This 

indIcates that the Directive and related pl'Ovgions of the '\;lorton 'V1cmorandum arc not "merely 

tcmalivc or interlocutory" in nature. See Bl'IIIICIi, 520 U.S. at 177 78. Second, the Directive sets 

forth speeiGe L,-ilCrla lhat must be :mtisiicd bc((m: an Individual is considered lor an exercise or 

prosccutorial discretion. ;'iee PIs.' Am. Camp!. Ex. 1 (Directiyc). at \, ECF No. 15-1. lfthc criteria 

of[hc Directive arc satisfied, ICE agents are instructed tn defer aCTion 3gainst the alien "for a period 

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oflwo YCR);;, suhject 10 renewaL" Jd at 2. Legal con~cq!lenccs now Ii·om a grant ofdeferrcd action. 

bcc8u:,e "an individual whose case has heen deferred is not considered to be unlawfully prescnt 

during; the purim] in which dcfclTcd action i,o, in cl1'cct." Mot. Supplement R. on AJ1)l1. Prelim. Inj. 

Attach. 1 (.Tung Decl.), Ex. A (lTSCIS Frequently Asked Qucstiol1~), m2, ECF No. 39-1. Additional 

legal conscqucllces !low !i·om the Directive and related provisions oCthe Morton \>"lemoranduTII. 

because if P lainti II, comply with Section 1225 and issue an t-;TA to a Directlve-eligih!c alien, they 

lace the threat ofdiscipIinary action. See Order I R ·24. n n.5, Jan. 24, 2013, ECF No. 41; see a/so 

Pis." Am. Camp!. , 50, ECr No. 15; i\pp. Pis." Rcsp. Mot. Dismiss Ex. 3 (Doebler AfU ~~ 2 9, 

Eer No. ]]; id. Ex. 2 (Engle AlT.) ":'!i 8,10; Dels' Opp'n Appl. Prelim. Ini, Atlaclnllclll G (EIli, 

Oed.), Ex. B (Doebler Notice of Proposed Suspension). Eer ","0.34-7; it/. Atrachment G (Ellis 

Dec!.), Ex. C (Doebler Decision on Proposed Suspension), Accordingly, the Court linds that the 

Directive and related provisions ofthc "'lorton Memorandum constitute ·'t1nal agency action" for 

which iudicial review is available. See 5 IJ.S.c. ~ 704. 

As explained below, the Court emmot dcrenninc the threshold iSSlIe ofwhcthcr "~lcrc 15 no 

other adequate remedy in a court" at this time. The Court wil[ complete its analysis of the merits of 

Pia intltls· APA claim, "tlcr the parties hav(' addressed the remaining Jurisdictiona I isslIcs hefore the 

Court. 

B. Threat of It'reparable Hann in the AbSellce of Preliminal1· Relkf 

To obtain a preliminary mjunctiol1, Plaintitls must demonstrate a "likelihood ofsubstamial 

and immediale irreparable injury." Sec O'Shea F. Littietoll, 414 u.s. 48g, 502 (1974). They must 

demonstrate that il1"cpamhlc injury is likclv in the ah,cnce of 3n injunction, rather than a mere 

possibility. See Winter 1'. IValliral Rex. De{. Cmlneil. Ille., 555 U.S. 7,22 (200R). There mUS1 be a 

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,how'ing of a real or immediate threat lhat Ihe plailltitls will he wronged in the flilurc. See Cilr of 

Los Angeli'S I'. Lrol1s.461 U.S. 95,111 (l9tl3), 

Def'cndalllscontcnd thallhi, Coun lacks jurisdiction over Plainti fl"s' claims because Plainlin" 

have csscmially alleged federal employment disputes dwt may proceed onlyulldcr the Civil Service 

Reform Act ("CSRA"). Dcfs.· Opp'n AppL Prelim. Ini. Iii. Eel' No. 34 (citing 5 1:.S.C. 

~ IIO:;(a)(l/)(C)(ii)). DctCndmm previously raised lhis issue in a footnote in their :-"101ion [0 Dismiss 

and addresseu the argument further in their reply brief Sec Dels.' Mol. Dismiss 11 n.3. ECT No. 

23; Defs.' Reply Mot. Dismiss 5. ECF No. 33. They again addrc,scd this issue i111hoir opposition 

to ptamtifTs Application for Preliminary Injuncthe Relict: but in no gTcatcrdetai! than at the motion 

to dismiss stage. Set! Dets.' OpP"l1 App!. Prelim. Inj. 16, ECF "io. 34. At the hearing on Pl3imiffs' 

Application tilr Preliminary Iniunction, the partics prescntcd no\'v fields that hear on the application 

ot'lhe CSRA. incluuing demils ahout Plaintit'fCranc issuing a dcmRncl to hargain under Collective 

Bargaining Agreement 20()O. 10 which Plaintiffs are parties. SeC' Hr'g Tr" see also Dd~.' OPI1"11 

Appl. [>rclim. rnj. Attach. G (Ellis Dec!.l. Ex. A (Agreement 2000 Between U.S. Immigration and 

l\aruraliz8fion Service and "imional Immigration and :\amralization Service Council), ECF :\0. 

34-7. 

This is an inadequate way to address the Court's jurisdiction, The Court prcviouslycriticizcd 

Defendant;;' tailurc 10 adequately raise the issHe of whether the CSRA precludes this Court's 

jurisdICTion in its Order Granting in Part and Dellying!l1 Part DcfcndJlm' Motion to Di,miss. See 

Order 3~-33, Jail. 24,2013, EeF No.4!. Presenting piecemeal argument; in a 1(mtl1otc in their 

motion 10 dismiss, in their rcplyhrief; in their opposition to Plaintiffs' Application f,')r Preliminary 

Iujunction, and then entirely new arguments at an evidentiary hearing is an inappropriate way to 

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challenge iurisdiction. In the Fit1h Circuit a party waives any issues that arc inadequately briefed. 

Unitr:d Stules v. Martinez. 263 F.3d 436, 43B (5tJl CiL 20(1)~Regmi 1'. Gonzales. 157 F. App'x 675, 

676 (51h eir. 20(5)(pcr curiam). How"ver, the is'ille of a federal court's subject maltcrjurisdicl.ion 

cannot be waived. Se~ Fed. R. Civ. P. 1:1(h)(3): COliI'" I. Pro!, R5 F3d 244, 24R (5th CiT. 1996) 

(ciling Cill' of IndimlO/Jo!is F. ChasC' ,\'al? Bank. j 14 US. 6,. 76 (J 941 )). The CSRA isslIe could 

afteet Ihe Coun's dCIcmlinunon of whether "Ihere is no other adequate remedy in a court" so thai 

re!icfis available under the APA, whether thcrc" a threat of irr"parablc hann in the absence of 

prelimi11luy relict: thus makmg a preliminary injullction appropriate. and whether the Coun has 

lurisdiction 10 hear this c~se at all. V.1111c ordimuily the is'>uc \\ould be waived. because the CSRA 

could potentially atIeel jurisdiction the Court linds it necessary to address the issue and require 

additional hriding from the pnrties'· 

IV. CO:W:LUSIO"i 

Accordingly. Ihe Court herehy defers ruling on l'lainltfj\' Application f()r I'rdllIlinary 

hljunc!ionllntillhe panics have submitted additional bncfing. 

It is hereby ORDERED that Ihe parties must submit supplemental briefs. nOl to exceed 15 

pages inlcnglh. uddressingthc ciTee! ofthe Collective ilargaining Agreemcnt and the CSRA all the 

COllff'S jmisdiction \() heaf the ca:ic. TIle parties mu~l provide dtalion~ to rclcvllill authOlity in 

support of their propositions, including citations 10 the rdcvunl provisions of the Collective 

Bargaining Agreement. SCI' Caslro I'. lI;fcCord. 259 F. App'x 664, 666 (5th eir. 2007) (n.:quiring 

citations ro relevant alllhority). The pan ies shall file theinespeetivc briefs on or before May 6,2013. 

'·f The Cnllrt wil! address the third and fourth factors required to obtain a preliminary 

inj ul'lcrioll- \\',hcthcrthc balance ofcquitics 11 ps in Plajntitf::;~ f~vorand w'hcthcl' an injunc:tinn is inthc puolic 

interest atlcr tho Cottl1 addrcssc:-:. the CSRA"s effect on j urisdiction_ 

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SO ORDERED lln ill!" 23rd day of API"i), 2013, 

EXITED STATES DISTRICT ,IUDGE 
208 

Mr. KING. And I’d ask you then, Mr. Crane, if you could speak 

to the Crane v. Napolitano case as far as the decision so far and 

the impending decisions that we think will be made. 

Mr. CRANE. Just basically that the case is not just about DACA. 

It’s also about the prosecutorial discretion memorandum. It’s been 

characterized incorrectly, I think, in the media, as well as in some 

of the meetings that we have had here. So basically it impacts almost every person that we come in contact with as ICE agents, 

that we’re being told not to arrest these individuals. The judge’s 

preliminary decision has been that we are correct in our legal position, that it’s illegal for the Administration, political appointees to 

tell us to not to follow the laws enacted by Congress. And the case 

actually hinges at this point not on a critical point of law, but 

whether or not we as Federal employees can sue the Federal Government. 

Mr. KING. Now, if this Congress should pass legislation that directs the executive branch to enforce a law—for example, local law 

enforcement enforce the law—if they direct that those persons that 

then are interdicted be placed into deportation proceedings, whatever might come out of this Committee, whatever might come out 

of this Congress, whatever might be agreed to in a conference committee between the House and the Senate, can you imagine how 

the Congress could change the position of the President to defy immigration law? Would new law be treated the same? Or what 

would be the distinction that you’ve see between this bill that’s before us today and the actual statute that the President has defied? 

Mr. CRANE. I’m sorry, sir. I don’t completely understand. 

Mr. KING. If the President won’t enforce existing law, why would 

we expect him to enforce new law? 

Mr. CRANE. We absolutely don’t. And, you know, we have been 

very open about this in the past. We had problems with this under 

previous Republican administrations as well. I think it’s been especially egregious under this one. But it’s something that has to be 

addressed by Congress. We can’t depend on our next President enforcing a law instead of creating a law. We have to create laws that 

are going to make the executive do their job. 

Mr. KING. I want to thank all the witnesses for your testimony. 

It’s been compelling. And I want to let especially those most personal of experiences that you have relived the pain, I want to 

thank you especially for that. And I will tell you that the emotion 

within all of us, on whichever side of the aisle we’re on, our hearts 

and our prayers are with you. And I believe we have an obligation 

as a Nation to square away the rule of law, protect the American 

people. 

And I ask the question of this inertia for amnesty, why? Why 

would we do this? How would Americans benefit from this? We 

should have an immigration policy that is designed to enhance the 

economic, the social, and the cultural well-being of the United 

States of America. 

This concludes today’s hearing. Thank you all again, the witnesses, for attending. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 
209 

This hearing is now adjourned. 

[Whereupon, at 6:25 p.m., the Committee was adjourned.] 

Æ