Testimony Before the House of Representatives on the Judiciary Subcommittee on Immigration, Border Security and Claims
Timothy J. Danahey
Federal Law Enforcement Officers Association
Good afternoon, Mr. Chairman and distinguished Members of the Subcommittee. I am honored to testify on such an important and vital subject. I respectfully request my written submission be admitted to the record.
The Federal Law Enforcement Officers Association – FLEOA, is a voluntary, non-partisan professional association. FLEOA currently represents over 19,000 federal law enforcement officers and is the largest association for federal officers of its kind. Several years ago, FLEOA joined with all of the major state and local national police associations to form the Law Enforcement Steering Committee. The Law Enforcement Steering Committee includes the following prominent and important organizations: Fraternal Order of Police, National Troopers Coalition, Major Cities Chiefs of Police, Police Executive Research Forum, the National Association of Police Organizations, National Organization of Blacks in Law Enforcement, the International Brotherhood of Police Organizations and the Police Foundation. In becoming a part of this group, federal agents were able to add our voices to those of the over half a million state and local officers already commenting on the issues that our Association considers to be of greatest importance. I tell you today, as I have told our membership and the Law Enforcement Steering Committee for the past several years that the continuing revitalization of immigration law enforcement is one of our highest priorities. A year-ago FLEOA testified before this committee for the seventh time imploring this committee to recommend a legislative restructuring of the Immigration and Naturalization Service (INS). FLEOA believes that the creation of the Department of Homeland Security (DHS) and the abolishment of the INS is exactly what were needed.
It was FLEOA’s belief that the revitalization of our nation’s immigration law enforcement will occur through passage and complete implementation of the Homeland Security Act of 2002. We appreciated the committee seeking our input on concerns we wish to discuss in the spirit of assisting you in making the Department more efficient and effective.
FLEOA believes the merger of
several Federal law enforcement agencies into this Department was a vital step
towards correcting many of the obstacles that have arisen over the years within
Federal law enforcement. We,
I want to take a moment to comment on the creation of the Department of Homeland Security and, specifically, the creation of the Bureau of Immigration and Customs Enforcement (ICE). Upon hearing of the Administration’s intent to abolish the INS, I was asked by a colleague my thoughts on this drastic reform. I responded by relaying a popular Churchill story in which a man received a telegram saying his mother-in-law had died and asked for instructions. The man wired back: “Embalm, cremate, bury at sea. Take no chances.”
As a National Officer of FLEOA, I represent many of the outstanding men and women who enforce our Nation's Immigration Laws. These men and women risk their lives every day in an environment that is increasingly violent. To make this mission more efficient while restoring the public confidence in immigration enforcement, FLEOA would like to see the following issues, matters of concerns and problems addressed in the creation of Department of Homeland Security.
GENERAL ARREST AUTHORITY
Under the former INS, a key provision of the Immigration Act of 1990 has yet to be implemented. The authority granting INS law enforcement officers general arrest authority has never been implemented. The Department of Homeland Security and specifically, ICE should implement the regulations (as stated in law) to give agents/officers general arrest authority. It is our understanding that currently US Customs agents have it. FLEOA recommends that ICE begin the process to implement general arrest authority provisions and extend protection against legal liability to all current ICE Officers.
Professionalism must be enhanced in the new department of Homeland
Security. One means to accomplish this
would be through enhanced training of all Special Agents (1811s), Deportation
Officers, and analysts. We recommend, strongly,
that ICE adopt the
Presently, the former INS Special Agents (1811s) have been hired from positions such as Immigration Inspectors, Deportation Officers and Border Patrol Agents. FLEOA recommends that all Special Agents who have not received the investigations training, such as the one offered at the Federal Law Enforcement Training Center (FLETC), the Criminal Investigator Training Program (CITP), be given a transitional training course so that they may be on par with US Customs Special Agents. We can no longer rely on the past INS model of On-The-Job (OJT) training, which is beneficial only as it complements CITP training.
Cross training of Special Agents previously employed by the former INS and the US Customs Service should begin immediately. While we feel that cross training of agents is absolutely essential, we note that there is no substitute for personnel resources. For too long, we have attempted to accomplish immigration law enforcement without admitting the need for the requisite personnel enhancements. Training for agents, supervisors and upper management should be conducted in an academy type setting, away from day-to-day distractions.
We recommend a specific standardized training program be developed and implemented relating to each job classification within ICE. If individuals transfer within job classifications within The Department of Homeland Security we recommend that they receive training in a transitional program designed to accommodate each classification such as Inspections to Deportation or Deportation to Special Agent. Under the former INS, an individual who transferred from a Deportation Officer to the Special Agent position received no job specific training after they transferred.
We recommend that all law enforcement personnel hired in the future within the Department of Homeland Security undergo a standardized training program while at the academy. Upon completion of this training they should receive advance training specific to each job classification.
reasonable to note that although many former INS Special Agents currently lack
the CITP certificate, the training they did receive in the
As noted in the current Homeland Security statue, pay parity is a major concern. Currently, a journeyman INS Special Agent is paid a full grade lower than a US Customs Special Agent. The problems associated with this are self-evident. We recommend an immediate across the board increase for all INS Special Agents as well as all agents currently assigned the 1811 job classification within the DHS. With less than 2000 Special Agents nationwide, the cost is minimal.
advocated for many years legislation addressing the pay disparity existing
between the public and private sectors.
We have brought to your attention the problems this poses for effective
Federal law enforcement. We would like
to take time now to remind this body of the need to pass the current House
Resolution H.R. 466, which will amend the Federal Law Enforcement Pay Reform
Act of 1990. This Bill will do two
things: adjust the locality pay percentages for
Currently the number of
aliens illegally in the
The results from Census 2000 call into question some of the basic information regarding immigration which we relied upon in the past. The surprise figures from the Census suggest strongly that immigration levels, particularly undocumented and temporary immigration, are substantially higher than most had suspected. With these numbers in mind we recommend that in addition to its customs enforcement responsibilities, ICE’s main responsibility should be to the “base" Immigration Mission – starting with the development of a meaningful, comprehensive, integrated enforcement strategy. Preservation of the integrity of the immigration processes and systems must not be forgotten as our great Nation rushes to embrace the counter-terrorism mission. We should remember that part --a major part-- of the reason we have a terrorism problem is because we neglected the staffing and support of components devoted to enforcement of the Nations basic immigration laws.
As the former INS Investigations and
Detention and Removal components transition to ICE, we note the that concerns
raised in a 2002 GAO Report titled “Immigration Enforcement, Challenges to
Implementing the INS Interior Enforcement Strategy”, remain the same
today. In this report, the GAO noted
that having an effective interior enforcement strategy is an essential
complement to having an effective border strategy. The GAO stated that the former INS faced
numerous and daunting enforcement issues such as, the potential pool of
removable criminal aliens and fugitives number in the hundreds of
thousands. The number of individuals
smuggled into the
Using the events of September 11 as a
barometer, we can clearly see what the lack of commitment to the base
immigration mission yields. A study of
terrorism conducted by the Center for Immigration Studies on
If they have not already done so, we recommend that ICE immediately create a planning and policy formulation office. The planning and policy functions should succinctly and articulately state the ICE mission and/or missions. This stated mission should chain-drive the budget formulation, rather than the budget process driving the stated mission, as was the case with the former INS.
ICE needs to address problems concerning interior capacity issues in relation to National Security Entry Exit Registration System (NSEERS), Student and Exchange Visitor Information System (SEVIS) and other law enforcement agencies referrals. Budget formulation, budget execution, resource deployment, personnel staffing, position management and position classification must address the lack of Special Agents, Deportation Officers, and other clerical staff actually in place to address "leads" from NSEERS and SEVIS, as well as from sources including federal, state, and local law enforcement agencies. Systems such as NSEERS or SEVIS will be rendered toothless if ICE doesn't have the interior enforcement resources to deal with NSEERS or SEVIS information on overstays, status violators and other law enforcement referrals. Without any consequences attached, we have only created the enforcement equivalent of a Potemkin Village. We CAUTION as in the past these resources must not be developed at the expense of anti smuggling, fraud, and other complex casework resources.
In regard to the interior immigration law enforcement mission we recommend that a commitment be made to deal with complex, protracted criminal cases, such as alien smuggling/human trafficking cases, immigration fraud cases, and NSEERS and SEVIS related tracking investigations. We recommend that these investigations be conducted by the Special Agent (1811) component of ICE. Secondly, the administrative functions of interior enforcement such as administrative jail cases, Institutional Hearing Program (IHP) and other law enforcement referrals should be given the same commitment. FLEOA recommends that the administrative mission of ICE immigration enforcement such as IHP and county jail cases be assigned to the Detention and Removal component. We note that these are related-but-different programs. Both missions must be accomplished -- and one cannot be emphasized at the expense of the other.
To see that criminal cases generated from ICE Special Agents are given consideration in the ever competitive world of federal law enforcement, we recommend that an Assistant United States Attorney in each United States Attorney Office be dedicated to immigration enforcement similar to those dedicated for asset forfeiture matters. We would ask for 50% of his/her time at a minimum be devoted to immigration related matters.
To allow ICE Special Agents to focus on the complex criminal matters as well as matters relating to national security it is essential that ICE Special Agents be relieved of all administrative jail duties. ICE Special Agents should no longer be utilized to accomplish routine administrative activities such as processing aliens under the NSEERS program or approving schools under the SEVIS program. These time consuming duties, as well as routine deportation escorts, would be better accomplished by the Detention and Removal component of ICE or through contracts with non-government entities and/or rehired annuitants. To accomplish its immigration enforcement mission, ICE would need to increase staffing levels by 100% in both the Investigations Program and the Detention and Removal Program. An increase in Special Agents from its current level of approximately 2000 to 4000 would cost approximately $234,078,000 according to modular costs. An increase in Deportation Officers to 2000 Officers would be needed to handle the current immigration enforcement workload, and again according to modular costs would cost approximate $241,054,000. We should note that these numbers would only be realistic with a net zero growth in the illegal alien population. Furthermore, ICE would need to immediately revamp and streamline the former INS’s enforcement operations, directives and policies.
members in the field have continuously stated that one of the greatest problems
in enforcing our Nations Immigration Law is in the area of detention and
removal. Large amounts of illegal aliens
are released in some districts (as many as fifty a day) before ever seeing an
Immigration Judge. Lack of bed space is
always cited as the reason. Many of the
available beds available for immigration detainees have disappeared because of
unrealistic “Detention Standards” imposed on local and county jails that house
federal inmates in 1998. We would ask
that these be relaxed or allow all existing jails some of which are very old to
be “Grandfathered” so that they need not apply all 39 of these unworkable
detention standards to housing immigration detainees. One such jails,
which supports the enforcement of the Northern Border in the State of
The GAO noted in a 2000 report titled “Alien Smuggling: Management and Operational Improvements Needed to Address Growing Problem” that without improvements in its Investigations and Intelligence Programs, INS’s ability to disrupt and deter increasingly sophisticated and organized alien smugglers and dismantle their organizations will continue to be hampered.
Again in a GAO Report on the former INS in 2002, the GAO was very critical of the INS’s ability to investigate alien smuggling groups, stating that without improvements in its investigations and intelligence programs, INS anti-smuggling efforts will continue to be hampered in the face of the growing tide of aliens entering the United States with the aid of smuggling organizations. The GAO went on further to note that INS’s alien smuggling investigative efforts have been fragmented and uncoordinated.
the problems within the INS Anti-Smuggling program are well documented, FLEOA
recommends that ICE be the central investigative agency for all human
trafficking/alien smuggling investigations.
Currently, there is no stated mission involving the targeting of human
trafficking/alien smuggling organizations within ICE. Research indicates that the majority of
illegal entrants have utilized the assistance of a smuggling organization to
We recommend that by making human trafficking/alien smuggling investigations one of ICE’s primary enforcement functions, the need exists to immediately fund and staff this component to levels that allow it to be effective. Research and experience has led us to believe that the most effective means to enforce laws relating to human trafficking/alien smuggling organizations would be to centralize all human trafficking/alien smuggling investigations into one agency with adequate staffing, funding and a strong headquarters component. It is imperative this program be given the requisite attention.
To assist the alien smuggling mission, ICE needs to think with some breadth and depth of vision. No longer can we think from a narrow, blinded point-of-view. We recommend the consolidation of the overseas operations at Border Transportation Security (BTS) directorate level, since they involve elements of the ICE and CBP mission. These functions should include oversight of visa issuance at overseas posts and the headquarters coordination of all alien smuggling investigations.
FLEOA would like to bring to
the committees attention a
We should resist any attempts to divide the immigration law enforcement mission into many agencies. ICE should be the clearing- house for all immigration related law enforcement issues. We should keep in mind the 1991 GAO report regarding immigration law enforcement. The GAO report stated that INS leadership had allowed the INS organizational structure to become decentralized without adequate controls. The field structure designed to carry out INS enforcement functions was bifurcated between districts and Border Patrol Sectors, resulting in uncoordinated, overlapping programs. It is our belief that any attempts to integrate duties historically executed by one agency into many, will only make matters worse and again lessen the quality and quantity of immigration law enforcement. The solution, as we see it, is resources, specifically, additional immigration 1811 Special Agent positions, who are trained and experienced in the enforcement of the immigration laws of the United States. Anything less, would not be fair to the legal immigrants who enter this nation each and every day.
Benefit Application Fraud
In a 2002 GAO report titled “ Immigration Benefit Fraud, Focused Approach Needed to
Address Problems”. The GAO noted that
the former INS did not know the extent of the immigration benefit fraud
problem. However, reports and statements
from former INS officials indicated that the problem is pervasive and
significant and will increase as smugglers and other criminal enterprises use
fraud as another means of bringing illegal aliens, including criminal aliens, terrorist, and foreign intelligence agents into the
In a 1997 Washington Post article, Bill Branigin reported, “that in most cases suspected benefit fraud is never investigated”. Branigin, states, “that the INS says, it lacks the manpower and resources to do so, more than half the fraud cases referred to it go unadddressed ”. INS officials stated further, “we have a large number of suspected fraudulent applications in our hands that we can’t even touch”.
The GAO notes that efforts to address benefit fraud were given a lower priority within the former INS, and resources devoted to it were limited. The GAO report concluded that immigration benefit fraud has been a long-standing problem for the former INS that has grown more intense and serious as criminal aliens and terrorists have used the application process for illegal activities, such as crimes of violence, narcotics trafficking, and terrorism. Institutionally, the former INS has not done much to combat this significant problem, which threatens the integrity of the legal immigration system because it results in granting valuable benefits to ineligible aliens. We recommend that ICE immediately prioritize investigations targeting Immigration Benefit Fraud and adopt the recommendations made in the GAO report.
If ICE is to accomplish the tasks outlined above in both the enforcement of alien smuggling and benefit fraud statutes, we recommend that ICE increase case funding to the extent of 5 million per year. As Congress has heard in previous testimonies, the former INS had consistently under funded or misdirected criminal case related funding.
In April of 2002, FLEOA testified that it
was our view that the INS has lost the confidence of the American people. Noting that following a GAO report in 1991,
entitled “Immigration Management: Strong Leadership and Management Reforms
Needed to Address Serious Problems,” the INS undertook an administrative reform
in 1994. Again in 1997, the GAO issued a
report “Immigration Management, Follow-up on Selected Problems”. This again prompted INS reform in 1998. Since the GAO report in 1991, there has been
a succession of negative and critical reports in regard to the former INS by
numerous other governmental and private entities. In March, 6o Minutes broadcast a
report in which it noted “few if any federal agencies have a worse record than
the INS when it comes to mismanagement, corruption, inefficiency and
ineptitude”. A few days after that
report is was reported that the INS notified a
Based upon the above stated accounts and numerous other accounts that are similar, it is our view that careful consideration should be given in the selection of former INS managers to management positions within ICE. We recommend that only individuals with extensive 1811 experience should hold all future appointments to Special Agent in Charge (SAC) positions. Furthermore, it is recommended that all SAC’s be appointed to a different geographical location in order to ensure standardization while eliminating questions of nepotism. This will ensure the promotion of seasoned and well-rounded managers.
Rotation of personnel between HQ and the field must be a systematic, sincere, and substantive policy. While this was first recommended 63 years ago (page 143 of the Secretary of Labor's Report on the Reorganization of INS, dated 1940 -- also known as the "Dimock Report) -- it never really happened. We recognize that this now is mandated by statute. Further, positions that are redundant, such as OCDETF coordinators from both Customs and INS should be eliminated.
As Congress has heard in previous testimony, Federal Agents cannot do their jobs properly with current restrictive policies put in place by Headquarters managers overly concerned with the perceptions of enforcement activities in the media. Our members have provided various examples as to these restrictive policies and their effects on job performance and morale. In one case, a Deportation Officer noted that in his Region, a policy was put out on how Deportation Officers can conduct fugitive operations. What was once a routine duty, going out in the field, running down leads, locating and apprehending fugitive aliens, now requires that an “operation plan” be written up and signed off by a supervisor, even for just one alien. Special Agents in one former INS Region are no longer able to search for fugitive aliens after sundown, to do so would require written approval by the Assistant District Director for Investigations.
In addition, Special Agents must also
write up and get approved, at numerous levels, an “operation plan” to apprehend
any alien – even if a probation officer calls to say a criminal alien is
sitting in his office. In one former INS
District, when agents began concentrating on arresting sex offenders, the
former District Director put out a policy that agents couldn’t apprehend any
"breadwinners.” This policy
prevented a gang unit agent from apprehending a gang member, who the very next
week, shot and killed an innocent bystander at a taco stand. Incidents like this have led to the decline
of morale. In a November 2002, directive
promulgated by the former INS Headquarters, it was mandated that any attempt to
operate an undercover operation utilizing smuggled illegal aliens will be
accompanied by the illegal alien’ s identity data and immigration
status before the operation will be approved. The use of an undercover operation in the
first place assumes the lack of knowledge in regards to these details making
this the equivalent of approaching a drug trafficker and asking him/her to
provide the name and date of birth of the trafficker that will bring the
narcotics into the
In essence, the work environment for immigration law enforcement has changed drastically. The statutory mandates as well as funding for immigration law enforcement have similarly undergone dramatic changes, yet the former INS remained stagnant, at best, and highly resistant to those very changes.
I respectfully submit to
this distinguished Subcommittee today that the events of
IMMIGRATION ENFORCEMENT CAN SUCCEED…
Immigration law enforcement must be both professionalized and depoliticized. We must no longer confuse effective immigration law enforcement as being anti-immigration.
Yes, we are a nation of immigrants,
but as this nation was built on its immigration, its immigrants were inspected
and documented. Today’s flow of immigration remains increasingly clandestine,
undetected and in some cases deadly, taking advantage of our benevolence. We are a nation that respects the rule of law
above all else. Effective immigration
law enforcement should be looked upon as a safeguard for those who seek shelter
and a better life in
consolidation of enforcement functions within the Department of Homeland
Security and ICE will not only alleviate the problem of overlapping enforcement
programs, but will enhance the ability to maintain consistent service and
enforcement postures throughout the
The establishment of integrated sub-units under ICE at the field level would ensure an appropriate level of specialization while maintaining flexibility, and would facilitate a cooperative and balanced approach.
FLEOA recommends the establishment of a Chief Enforcement Officer who supervises all enforcement components in a particular field enforcement sector, who reports to ICE Headquarters, is an idea whose time has come.
Congress must begin to
strike a balance between enforcement on our borders and enforcement in the
interior. Clearly, the catastrophic
attacks of September 11th demonstrated that a total focus on the
first line of defense will lead to only a hollow victory. Word of mouth travels rapidly back to the
source countries that one must merely make it across the border in order to
obtain this new gift of unsanctioned amnesty.
In short, we will never restore domestic tranquility until we begin to
establish meaningful rather than token control over our borders and the
interior of the
Mr. Chairman, I would respectfully submit that upon creation of the Bureau of Immigration and Customs Enforcement, it is not necessary to reinvent the wheel but merely adopt tried and true successful practices of modern day law enforcement entities. FLEOA recommends strongly the Implementation of Enforcement Sectors within the ICE and CBP. This would facilitate a cooperative and balanced approach to enforcement of our nation's immigration laws. In turn, you will then begin to see the accountability and productivity that our citizens not only deserve but also, are demanding of immigration enforcement.
The immigration issue is based upon law and should not be dictated by the politics of the moment. FLEOA would stress that the Director of the new Enforcement Bureau must be guaranteed freedom from political interference. Without equal emphasis in ICE for immigration law enforcement, it is unlikely that the legislative innovations against international terrorism passed by the 104th Congress in 1996 will ever be used to their full potential. Only through streamlining the bureaucracy, overcoming institutional inertia, and establishing balance through a separation of functions, can modern day immigration law enforcement be successful.
On behalf of the Federal Law Enforcement Officers Association, and the many dedicated men and women who risk their lives enforcing our immigration laws, I appreciate your time and attention, and the opportunity to share our views; these employees support what you are doing. I will be happy to answer any questions you may have. Thank you.