1998 Congressional Hearings
Intelligence and Security








SEPTEMBER 16, 1998




Thank you Chairman Abraham, and members of the Subcommittee, for the
opportunity to appear before you today to discuss the Immigration and
Naturalization Service's (INS) Detention Program -- where we have come
from, where we are today, and what has to be done to get where we need
to be.

Strengthening this country's capacity to detain and remove criminal
and other deportable aliens is one of the key components of INS'
comprehensive strategy to deter illegal immigration and to protect
public safety. The Detention Program is a critical component of both
the border and interior enforcement efforts of INS. Without an
effective program, apprehending deportable aliens becomes a training
exercise, lacking credibility and producing little result.

Establishing an effective Detention Program, however, requires more
than simply enhancing our capacity to detain and remove deportable
aliens. We must ensure that this capacity is being exercised
consistently and humanely nationwide. Additionally, we have to be
sensitive to the unique circumstances of those asylum-seekers who are
placed in our detention system and guarantee that their claims are
adjudicated as expeditiously as possible. People who come to this
country yearning to breathe free should not languish behind bars.

INS' Detention Operations

The purpose of detention is to ensure the appearance of aliens who are
awaiting the disposition of their cases or removal from the United
States and to protect communities from those who may pose a danger.
INS detains aliens who are under immigration proceedings at its own
detention facilities called Service Processing Centers (SPCs),
contract detention facilities (CDFs), contract juvenile shelters,
local government detention facilities, and Bureau of Prison (BOP)

This Administration, with strong support from the Congress, has taken
significant steps to reverse years of neglect in the Detention
Program. Over the past several years, this commitment has been backed
by significant increases in resources devoted to the detention and
removals efforts. From FY 1994 through FY 1998, funding from all
sources increased from $239 million to $733 million, and the number of
positions rose from about 1,900 to about 3,400. This represents an
increase of about 200 percent in our funding, and about 80 percent
increase in personnel.

INS' program is the fastest growing detention operation within the
Department of Justice. The agency maintained an average of
approximately 6,600 beds in FY 1995 and about 8,600 beds in FY 1996.
Last year, our capacity grew to about 12,000 beds, and as of September
1, we were using approximately 16,000 beds. This represents an
increase of about 140 percent in the number of beds since FY 1995. Our
growth could not have been accomplished without the close cooperation
we maintain with local governments, which provide us with a bout half
our detention capacity.

In the past, illegal immigrants faced little risk of being caught, and
if they were apprehended, chances that they would be removed were also
limited. This was true even for aliens who committed crimes while in
the United States. Today, the situation is vastly different, due to
our increased detention capacity and improved removal efforts.

Removing individuals who are here unlawfully underscores our
commitment to restoring credibility to the nation's immigration laws.
We are also making the streets of our communities safer by removing an
increasing number of aliens who have been convicted of drug
trafficking or other serious criminal offenses. During the first 10
months of this fiscal year, we removed criminal aliens at a rate of
more than 1,000 per week, putting us on track to remove more criminal
aliens this year than the total number of criminal and non-criminal
aliens removed in FY 1995. This year we expect to formally remove more
than 165,000 aliens, including criminal aliens, or about 50 percent
above last year's efforts.

The increase in detention capacity alone does not tell the whole
story. INS' detention operations are characterized by large numbers of
aliens moving through the detention system in short periods of time.
The number of aliens being taken into detention and processed, as
represented by the number of initial admissions to a detention
facility, has increased significantly over the last four years. In FY
1995, the number of initial admissions was about 86,000 while in the
subsequent two years it was about 108,000 and 142,000, respectively.
This fiscal year the number of initial admissions will exceed 150,000.

The average length of stay for an alien in INS custody is about 34
days, although stays range from a mere couple of days to many years.
Mexican nationals, on average, stay in detention for much shorter
periods, while other nationals may remain for months or even years.
Applications for relief from removal, difficulties in obtaining travel
documents from the alien's country of origin, and efforts by some
aliens to prevent removal contribute to the length of stay.

INS' detention operations are complex because of the diverse
populations within the two categories of detainees -- criminal aliens
and non-criminals. We detain adult males and females, juveniles, and
even families. Each of these groups presents complex security,
administrative, and social issues to our detention program managers.
Our facilities and employees must be prepared to deal with individuals
who have committed murder while in the United States, as well as
asylum-seekers, and families that include minors. Detainees may come
directly from a federal, state, or local prison, from a Border Patrol
operation, from an Investigations' anti-smuggling or employer sanction
operation, or from enforcement efforts by Inspections personnel at an
airport or other port of entry.

Our detention priorities reflect this complex mission. The removal of
aliens who have committed crimes in the United States has been, and
will remain, our top enforcement priority. Consequently, we manage our
detention facilities to ensure that space is available for criminal
aliens who pose a danger to the community or a risk of flight.

With the passage of the Illegal Immigration and Immigrant
Responsibility Act, (IIRIRA) of 1996, Congress expanded this priority
by requiring that virtually any alien who is subject to removal on the
basis of a criminal conviction, without regard to age or
circumstances, be detained without bond. Aliens in this category may
not be released under the new law, regardless of whether they are
likely to appear for proceedings and pose no danger to the community.
Moreover, aliens who have been ordered removed from the United States
must be detained until they are removed or until 90 days have passed,
regardless of the basis for the order and the prospects that their
home country will accept his return.

Even with the significant increases in resources, INS will be unable
to meet the custody requirements of IIRIRA. The agency has limited
detention resources to address both mandatory detention and to support
of border control, anti-smuggling, and work-site enforcement. In our
system, alien- subject to mandatory detention have first priority for
all available detention space. This includes criminal aliens subject
to mandatory detention because of their crimes and aliens with final
orders of removal, as well as arriving aliens at ports of entry who
are inadmissible under the Immigration and Nationality Act (INA) and
are subject to expedited removal proceedings.

Mandatory Custody

In each of the past two years, I have found it necessary to invoke the
Transition Period Custody Rules (TPCR) to suspend the full application
of the mandatory detention provisions of IIRIRA. Under TPCR, INS and
the immigration courts may release a lawfully admitted alien who is
deportable for a criminal offense after considering the nature of the
offense, the likelihood that the person will appear for further
proceedings, including removal; and what danger that the person may
pose to the community. The regulation leaves no discretion for release
in cases involving certain specified serious offenses.

TPCR expires on October 8, but INS continues to lack sufficient
detention capacity and personnel to comply fully with the provisions
of IIRIRA and maintain a comprehensive and balanced enforcement effort
at the borders and in the interior.

Currently, approximately 9,600 of our 16,000 available beds, about 60
percent of our capacity, are occupied by criminal aliens. Of the
remaining 6,400 spaces about 1,100 beds are being used to support
airport enforcement operations, 400 are for shelter and foster home
beds to house unaccompanied juveniles., and about 4,900 beds support
the remaining border and interior enforcement operations.

We recognize that it would be unreasonable to fund the capacity to
detain every alien during the course of removal proceedings.
Consequently, we are actively exploring alternatives to detention for
ensuring that aliens for whom release from custody is deemed
appropriate appear for their scheduled hearings and ultimately for
removal if it is so ordered. We have enlisted the Vera Institute, a
highly regarded non-profit organization that provides support to New
York City's probation and parole programs, to examine the effect on
that supervised release has on appearance rates. The Appearance
Assistance Project, a pilot program now in its second year, will be
evaluated regarding the effect it had on regular reporting
requirements, assistance in navigating the process, and help with
obtaining representation can have on appearance rates.

Prosecutorial Discretion

In other contexts, Mr. Chairman, you have suggested that INS exercise
its prosecutorial discretion not to remove certain aliens when the
requirements of IIRIRA impose particular hardships. We agree that in
some limited circumstances, prosecutorial discretion will afford some
measure of temporary relief. However, the mandatory custody provisions
present a different dilemma. Most of the people for whom custody is
mandatory are people we want removed from the United States. However,
in some cases, no purpose is served by maintaining the person in
custody during the entire process. Accordingly, while we agree that we
have discretion to determine whether to pursue removal, we firmly
believe that determination should not be dictated by whether the
person's custody will be mandated by the statute.

An extension of the TPCR would also offer some flexibility in dealing
with long-term detainees whose home countries refuse to issue
documents and take them back. We currently detaining about 2,500 of
these individuals in our facilities or local jails under contract to
INS. They pose special security and administrative problems in our
detention program because our system is not designed for long-term
detention. Unlike the typical correctional system, in which prisoners
obtain all educational and vocational programs and rehabilitation
services, our mission is to provide secure and humane detention to
those individuals under immigration proceedings. We have begun
efforts, with the support of the Department of Justice, to house the
long-term, non-removable criminal aliens in BOP facilities. The BOP
has the appropriate facilities and staff to handle criminal aliens
convicted in the United States of very serious crimes and who are
likely to remain in custody for many years.

Detention of Asylum-Seekers

One point of concern that has often been raised involves the
sensitivities surrounding the detention of asylum-seekers. INS has
long been committed to the idea that the government should seek to
avoid the needless detention of asylum-seekers. In 1992 INS initiated
the Asylum Pre-Screening Officer (APSO) Program to identify
asylum-seekers in detention whose claims were sufficiently promising
to weigh in favor of their release while their claims were being heard
by an immigration judge. Aliens whose claims met the screening
standard and who were considered unlikely to abscond or to pose a
threat to the community could be considered foe release. The program
was implemented to make wiser use of limited detention space. and to
avoid the unnecessary detention of asylum-seekers.

In the past two years there have been significant developments in the
detention arena which have affected the treatment of detained
asylum-seekers, who make up roughly 5 percent of the population in INS
custody. The first involves the expedited removal provisions of
IIRIRA. APSO mainly covered aliens who were placed into exclusion
proceedings at ports of entry, essentially the same group covered by
the expedited removal provisions of IIRIRA, which also uses the same
screening mechanism -- the "credible fear of persecution" standard --
as APSO. Arriving aliens who are inadmissible under section
212(a)(6)(C) or 212(a)(7) are subject to expedited removal. If such a
person indicates either an intention to apply for asylum or a fear of
persecution, an asylum officer will determine whether the alien has a
credible fear of persecution. The statute requires that the person be
detained until found to have a credible fear. INS' policy, however, is
to favor release of persons who meet the screening standard and who do
not appear to pose a risk of flight or a danger to the community.

INS has added additional safeguards within the process to ensure that
asylum applicants will be afforded the opportunity to prepare for the
credible fear interview. Persons who are referred are brought to an
INS detention facility -- rather than being interviewed immediately
after the secondary inspection -- and they are given 48 hours in which
to rest and to consult with a person or persons of their choosing.

In the past, an arriving alien who presented him/herself at a port of
entry without the necessary documents or who attempted fraud would be
placed in exclusion proceedings. Often the asylum applicant's
exclusion hearing would be scheduled much later and the person would
be detained pending his immigration proceeding. Since the change in
the law, aliens who pass the credible fear test are placed in an
immigration hearing in much shorter order. The process calls for
District Directors to consider automatically whether to release an
asylum-seeker who meets the credible fear test and such persons are
often released if they have ties to the community and a source of
support. Further refinements are needed to this release policy, and we
have instructed the districts to supply us with statistics necessary
to determine what further improvements should be made nationally.

The second major development that affects asylum-seekers is INS'
publication of new detention standards for its SPCs and contract
facilities. These standards are not limited to asylum-seekers, but
their situation is directly improved because of new standards that
cover areas such as access to legal material and telephones;
visitation policy; and group legal rights presentations.
Asylum-seekers who are detained are generally held in INS-controlled
facilities covered by these standards.

While INS strives to detain asylum-seekers in its own facilities, this
is not always possible. Many asylum-seekers come into our custody in
areas that do not have an INS facility. It is administratively
difficult, and costly, to transport every alien to an INS detention
facility. Furthermore, INS does not have the capacity to house all
detainees in its own facilities, and we only have two facilities
solely dedicated to detaining non-criminal aliens. They are the CDFs
at Elizabeth, New Jersey (300 beds), and Queens, New York (200 beds).
Additionally, concerns may arise when detainees are transported to INS
facilities that distance them from their families, friends, legal
counsel, and other members of their support group.

Conditions of confinement in our facilities, as well as in local
detention facilities, are another area of concern, especially as it
affects women, juveniles, and asylum-seekers. This is an area of
particular concern to me, and I must emphasize that INS is committed
to providing a safe and humane environment for all individuals held in
its custody. It is our policy to treat all aliens in custody with
dignity and respect.

Within our own facilities INS maintains a policy that non-criminal
aliens and those aliens with minimal criminal history must be housed
separately from career and dangerous criminal aliens. Where a facility
is responsible for housing both criminal and lion-criminal aliens,
intermingling of populations is limited through proper identification
and classification of all detainees. To ensure consistency in the
application of our policies, we updating our Detention Operations
Manual, a major effort that comes in the midst of an unprecedented
expansion of our detention capacity and responsibilities.

We have issued 17 new Detention Standards, and we are in the process
of drafting another 22 standards that will complete our manual. These
standards deal with such issues as detainee visitation policies,
classification of detainees, access to legal materials, detainee
grievances, marriage requests, religious practices, etc. We have used
INS policies, BOP policies and expertise, as well as American
Correctional Association (ACA) detention standards 9 to develop our
own standards. Our new standards comply with and often exceed ACA
standards. The ACA standards are recognized as the national standards
in the field of corrections, and they address very specific conditions
of confinement that ensure detainee rights are not violated.

The various county and local detention facilities INS uses must follow
state and local standards for the humane treatment of those in
detention. In addition, INS conducts a comprehensive jail inspection
prior to housing INS detainees in a particular detention facility and
annually thereafter. Facilities that do not meet our minimum standards
must take necessary corrective action or INS will not use them. We are
revising our jail inspection standards to incorporate the principles
and spirit of the detention standards promulgated for our own

While local jails provide less INS control, the rapid increase in
funding for detention has left INS with no alternative but to rely
increasingly on local facilities. Where we have a large presence in a
local detention facility, INS attempts to have its detainees
segregated from the rest of the population housed at that facility,
and have INS staff on site to deal with the aliens in custody.
However, there are instances where some of our detainees, both
criminals and non-criminals, may not be segregated from individuals
serving sentences. Nevertheless, these local jails use classification
systems that apply equally to criminals and non-criminals in
determining housing assignments. Classification systems are not based
solely on a detainees criminal history. The classification decision
takes into account all available information relevant to a detainees
potential threat to other detainees, facility staff, and himself or
herself. Thus, it is possible and appropriate for a non-criminal alien
with a history of assaults and violent behavior while in custody to be
housed with a criminal who exhibits similar behavior.

Detention of Juveniles

In expanding our detention capacity, we have paid particular attention
to the housing of juveniles. Over the last three years we have
increased our juvenile detention capacity by about 250 beds, which
more than doubled our available space. Also, in the past year we have
trained all of our officers who come in contact with juveniles on the
proper handling of their needs. INS' policy is to place each detained
juvenile in the least restrictive setting appropriate to the minor's
age and special needs. We are also concerned that such a setting be
consistent with INS interests to ensure the minor's timely appearance
before INS and the immigration courts, while protecting the minor's
well being and that of others. We are very proud of the progress we
have made in this area, and we constantly emphasize the need to house
juveniles in state-licensed facilities that meet strict requirements
to provide for their medical, educational and recreational needs.

Access to Representation and Legal Materials

Another important area where we are making very substantial progress
is that of improving aliens' access to representation and legal
materials. In the past year-and-a-half we have worked very closely
with the American Bar Association (ABA) to improve legal access for
detained aliens. Working with the ABA, we published detention
standards in January that cover detainee visitation, telephone access,
access to legal materials, and group legal presentations.
Additionally, on March 5, I implemented INS' Program for Ensuring
Access to Detained Aliens. This program includes working with the ABA
on implementing the detention standards that deal with access,
developing a strategy to increase pro bono representation for detained
aliens, and familiarizing all of the parties with the revised

As part of this process, representatives of INS, the ABA, and private
practitioners visited four INS detention facilities and one local
jail. Our hope is that these visits, coupled with regional and local
meetings, will result in enhanced cooperation at the local level.
Also, meetings with INS Internal Audit staff have been held to ensure
that access procedures are being evaluated in INSPECT (an internal
review process designed to ensure quality, accountability and
professionalism at all INS field offices) reviews. Additionally, I
appointed the Senior Counsel for Detention and Deportation, Office of
Field Operations, as INS Headquarters Facilitator for this program. We
are making great strides and are fully committed to the success of
this program.

In order to improve access and facilitate telephone communication by
the detainees we awarded a contract in late July to Public
Communications Service (PCS), under which state-of-the-art telephone
systems will be installed in INS detention facilities that will allow
detainees to make collect and debit calls at a reasonable cost, as
well as free phone calls to consulates, pro bono organizations, and
immigration courts. The system will also facilitate detainees' efforts
to contact their families, friends and legal counsel. We expect this
new system to be fully operational in all our facilities by the end of
the calendar year.

Other Recent Accomplishments

The Detention Program cannot be characterized only by its significant
growth in the last several years. We must also look at efforts to
improve the quality of its service, the increase in its effectiveness
and efficiency, as well as measures taken to improve its cost
effectiveness. I have already discussed our efforts to update and
improve our detention standards and to improve access to detained
aliens. I wish to point to some other significant accomplishments
during the past year.

Earlier this year we opened a new 450-bed detention facility in
Batavia, New York. It is the first time that we have been able to
build a new detention facility, as opposed to modernizing and/or
expanding existing structures inherited from other government
entities. This modern, state-of-the-art facility is a Federal
Detention Center operated by INS but housing both INS detainees as
well as United States Marshals Service (USMS) pretrial detainees. It
is the first time that an INS facility regularly houses individuals
that are not under immigration proceedings. The facility was
constructed to meet current ACA accreditation standards, and provides
outstanding working and living conditions for our employees and

We also opened two new 200-bed dormitories at the El Paso SPC, a
300-bed dormitory at the Krome SPC, and a 200-bed dormitory at the
Port Isabel SPC. Three additional 200-bed dormitories will be
constructed by next year at the Port Isabel, which is only part of the
overall efforts to completely modernize all structures at this SPC.
All of these new buildings are being constructed to meet ACA

At the El Paso SPC, the construction of a clinic new kitchen, new
processing structure, and deportation/EOIR building is almost
complete. Additional construction projects at the Krome, El Centro,
and Florence SPCs are also underway. These construction projects
represent efforts to modernize our facilities and improve both the
working conditions for employees and living conditions for detainees.

We have contracted with the ACA to receive pre-accreditation
assessments and training for the detention facilities that had not
started the accreditation or re-accreditation process. So far, two out
of the nine SPCs and three out of the six CDFs are accredited, and our
goal is to accredit all facilities. The accreditation program offers
INS the opportunity to evaluate its operations against national
correctional standards, remedy deficiencies, and upgrade the quality
of services being provided. Receiving accreditation demonstrates a
good faith effort to improve conditions of confinement and a
commitment to a safer and more humane environment for personnel and
detainees. In addition, eight SPCs and two CDFs have received
accreditation from the National Commission on Correctional Health Care
(NCCHC), while three SPCs have also received accreditation from the
Joint Commission for the Accreditation of Healthcare Organizations
(JCAHO). These later two bodies establish acceptable standards for
health care, and visibly demonstrate our commitment to improving
detainee-patient care quality.

INS has an Inter Agency Agreement with the United States Public Health
Service (PHS) to provide medical care to individuals in our custody.
Our relationship with PHS dates back to 1891 at Ellis Island, although
their direct support at our facilities dates back to 1981. In the past
year we have expanded clinical services to 24-hours, seven days per
week, and have established a managed care program to contain our
health care costs. We started a pilot fiscal intermediary project at
our SPCS, to pay our medical claims. So far this fiscal year, we have
saved $2.1 million. We plan to expand this project to all the
detention facilities used by INS, which should allow us to save 25
percent cost in our health expenditures.

INS has been successful in introducing video teleconferencing (VTC)
technology to the detention process to conduct remote hearings for
detained aliens and alien inmates participating in institutional
hearing programs. We have equipped, or are in the process of
equipping, 15 of EOIR's courts and a number of remote hearing sites.
With VTC, the government realizes savings as a result of fewer
detainee movements to court, shorter stays in detention; and reduced
travel by judges, court staff, and attorneys. Additionally, there are
intangible benefits such as greater flexibility and efficiency in
scheduling hearings as well as improved security. Because of its
success, we are exploring the use of VTC instead of in-person consular
interviews to expedite the issuance of travel documents. Additionally,
we plan to test telemedicine (use of video equipment by a doctor to
make a diagnosis from a remote location) to decrease costs and improve
the overall quality of medical care for detainees.

Additionally, we are cutting costs by establishing transportation hubs
tied to the Justice Prisoner and Alien Transportation System (JPATS),
which will also improve our ability to remove aliens in the most
expeditious manner. The use of JPATS has increased by more than 400
percent over the last four fiscal years, and we expect to move over
55,000 aliens this fiscal year. We expect to increase its use by
approximately 10,000 movements, next fiscal year. JPATS flights allows
us to return criminal and other illegal aliens to their home countries
in a more secure and cost effective manner than by using commercial

By using JPATS we prevent the problems that could occur in the rare
instances when some aliens being removed on commercial airlines do not
behave appropriately, thus disrupting the public's travel and the work
of airline employees. The use of JPATS also increases our
effectiveness in the use of escorts for removals. Currently, we are
using 18-21 JPATS repatriation flights per month, and we expect to
increase this number by about 20 percent in FY 1999. Repatriation
flights to Central and South America and the Caribbean basin are now
routine and we expect JPATS flights to other parts of the world to
become routine next fiscal year.

In addition to issuing several standards related to detention
operations at our SPCs and CDFs, we have published two standards
relating to escorts and the use of restraints. Among their many
provisions, these two standards provide specific guidelines to our
employees when aliens are transported by ground or air must be
escorted, the number of escorts required, the type of restraints to be
used, and the circumstances under which restraints can be used. Both
the employee unions and representatives of the airline industry
participated in the drafting of these standards.

Facing the Future

As I indicated earlier in my testimony, we are grateful for the strong
support that both this Administration and Congress have provided. It
has allowed us elevate the Detention and Deportation Program from
stepchild status to that of an integral member of our enforcement
family. However, despite the substantial progress we have made and the
hard work, dedication and creativity of the Detention staff, INS'
current structure is impeding efforts to make this family function
even more effectively. And, this is an obstacle that no amount of
resources can overcome.

Detention and deportation, however, is not our only program hampered
by this, outmoded structure; it impedes performance throughout the
agency by restricting accountability and by creating confusion about
roles and responsibilities. The only way to cast off this shackle is
by fundamentally restructuring INS. We have proposed to do this by
dividing the enforcement and service functions of the agency into
distinct, separate chains of command, each with a single point of
accountability for performance.

We want to create enforcement areas that bring detention and
deportation together with the other enforcement disciplines Border
Patrol, inspections, investigations, and intelligence -- under a
single enforcement director. Currently, these components do not answer
to the same person until you reach the top levels of the agency, which
is far too high in the chain of command to establish the close
coordination necessary for effective enforcement.

Operation Gatekeeper and Operation Rio Grande have been successful, in
part, because Detention and Deportation personnel work closely with
Border Patrol to meet the bed space and transportation needs of these
operations. They have been able to achieve a high level of
coordination in spite of our current structure, not because of it. We
must support our hardworking personnel. Given the increasingly complex
challenges we face, we can no longer leave this to chance;
coordination of day-today enforcement activities must be the rule, not
the exception.

Restructuring will not only improve coordination between Detention and
Deportation and our other enforcement disciplines, it will also
strengthen internal logistics by replacing the thirty-some offices
currently involved in arranging transportation and detention for
apprehended aliens with a consolidated group of new Detention and
Enforcement Support offices. As a result of these internal and
external improvements, we will be able to remove criminal and illegal
aliens in a more efficient, economical, and expeditious manner.

Detention will also be enhanced by the fact that our proposal, unlike
other restructuring plans, will preserve the vital synergy between
enforcement and services by keeping these two inter-connected and
interdependent functions under one roof. Take the case of
asylum-seekers, for example. Proper and prompt adjudication of asylum
claims requires us to be sensitive to the unique circumstances and
needs of asylum-seekers from the moment they enter the country.
Maintaining the ties between enforcement and services will ensure that
all immigration officers develop this needed sensitivity.

In short, restructuring will advance our efforts to protect both the
American public and aliens in our custody.

This concludes my formal statement on the Detention Program of INS. I
thank you for the opportunity to appear before you and hope that we
will earn your support for enhancing this critical program. Mr.
Chairman, I would be happy to answer any questions that you and
Members of the Subcommittee may have.

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