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Congresswoman Sheila Jackson Lee


Detention and Release Policies of the INS and Executive Office of Immigration Review (EOIR)

December 19, 2001

Thank you, Mr. Chairman for holding this timely oversight hearing on INS detention and release policies. I say timely not just in light of September 11th but also at a time where the Subcommittee is reviewing the overall structure and function of the INS with respect to the nation’s immigration system.


The INS is charged with both facilitating legal immigration and enforcing the nation’s laws to prevent illegal immigration. That balance should be kept in mind as we explore possible changes to INS policies. It can be both tempting and comforting to err on the side of shutting all our borders tight and locking up all those we think might be dangerous. That is not the constitutional bedrock the country was built on nor the strength of our nation. However, it is the obligation and right of the nation to protect its citizens and its sovereign rights.


This delicate balance can be seen in recent decisions by the Supreme Court who appear to be moving toward a higher degree of protection of civil liberties for noncitizens while the Attorney General and the President are seeking additional power to detain aliens who they think might be dangerous. Under the new Patriot Act, the Attorney General only has to certify that an alien is likely to engage in or support a bad act and the alien is subject to mandatory detention. This detention would be mandatory even for aliens who have been granted asylum. This could present problems. If detainees are not allowed an opportunity to contest their likelihood of engaging in terrorist activity, due process problems seem certain to arise.


These issues of due process and proper balance arise in the area of mandatory detention and the rights of asylum seekers. The provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) require mandatory detention of most criminal and certain categories of non-criminal aliens and asylum seekers taking away the INS’s discretion to release these groups. But this has caused more practical problems creating the issue of detention space. Where do we house all of these people? And do we want to if they don’t pose a credible threat to national security, are a danger to the community or a risk of flight?


We will hear today testimony from the INS that from Fiscal Year (FY) 1994 to FY 2001, the average daily detention population has more than triple from 5,532 to 19,533. And in FY 2000 alone, the INS admitted more than 188,000 aliens into detention. Surely, we cannot continue to detain people at that rate. The New York District model purports to have the answer. In the New York District, the number of inadmissible aliens arriving at JFK dropped 63% from FY 1992 to FY 1999. The number of asylum applications dropped 91% in that same period. This occurred while the passenger traffic increase 18% at JFK. The way the New York model does it is by detaining all aliens who are inadmissible for fraud or document-related reasons. Is this an applicable model throughout the nation? And do we have enough beds to house all these people? And do we want to?


We do want to stop the types of incidents that occurred in Virginia in the Bell case as we will hear from Commonwealth Attorney, Paul H. Thompson. Something must be done to prohibit anyone, alien or not, who has a criminal history and is a danger to the community from having uninhibited freedom. Another possible option comes from INS detention policy expert, Professor Margaret Taylor, who suggests the concept of “supervised release” as an option to detention. This option was tested from 1997 to 2000 in New York at the request of the INS on noncitizens including asylum seekers, individuals facing removal as a result of a criminal conviction, and undocumented workers apprehended at work sites. The project entailed answering the question of what type and what level of supervision will increase people’s rate of appearance in court and compliance with immigration law rulings. Professor Taylor will discuss the results.


Mr. Chairman, I want to reiterate that we are a nation of immigrants, and a strong one at that. Therefore it is crucial that we seek a balance in our immigration laws addressing due process concerns, the reality of detention space and the need to protect our nation and its citizens.


Thank you, Mr. Chairman.