[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
PUBLIC SAFETY AND CIVIL RIGHTS IMPLICATIONS OF STATE AND LOCAL
ENFORCEMENT OF FEDERAL IMMIGRATION LAWS
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
AND THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
APRIL 2, 2009
----------
Serial No. 111-19
----------
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
PUBLIC SAFETY AND CIVIL RIGHTS IMPLICATIONS OF STATE AND LOCAL
ENFORCEMENT OF FEDERAL IMMIGRATION LAWS
PUBLIC SAFETY AND CIVIL RIGHTS IMPLICATIONS OF STATE AND LOCAL
ENFORCEMENT OF FEDERAL IMMIGRATION LAWS
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
AND THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 2, 2009
__________
Serial No. 111-19
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
48-439 WASHINGTON : 2009
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah
BRAD SHERMAN, California TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
HOWARD L. BERMAN, California STEVE KING, Iowa
SHEILA JACKSON LEE, Texas GREGG HARPER, Mississippi
MAXINE WATERS, California ELTON GALLEGLY, California
PEDRO PIERLUISI, Puerto Rico DANIEL E. LUNGREN, California
LUIS V. GUTIERREZ, Illinois TED POE, Texas
LINDA T. SANCHEZ, California JASON CHAFFETZ, Utah
ANTHONY D. WEINER, New York
CHARLES A. GONZALEZ, Texas
WILLIAM D. DELAHUNT, Massachusetts
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia STEVE KING, Iowa
TAMMY BALDWIN, Wisconsin JIM JORDAN, Ohio
JOHN CONYERS, Jr., Michigan LOUIE GOHMERT, Texas
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
APRIL 2, 2009
Page
OPENING STATEMENTS
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law
Oral Statement................................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law
Oral Statement................................................. 3
Prepared Statement............................................. 242
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
Oral Statement................................................. 5
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary
Oral Statement................................................. 6
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties
Oral Statement................................................. 7
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties
Oral Statement................................................. 8
The Honorable Ted Poe, a Representative in Congress from the
State of Texas, and Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law
Oral Statement................................................. 9
WITNESSES
Mr. Julio Cesar Mora, Avondale, AZ
Oral Testimony................................................. 11
Prepared Statement............................................. 12
Mr. Antonio Ramirez, Community Advocate, Frederick, MD
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Ms. Deborah W. Weissman, Reef C. Ivey II Distinguished Professor
of Law, Director of Clinical Programs, University of North
Carolina at Chapel Hill School of Law
Oral Testimony................................................. 20
Prepared Statement............................................. 22
Mr. Ray Tranchant, Operations Director, Advanced Technology
Center, Virginia Beach, VA, Adjunct Professor at Cambridge
College, Cambridge, MA, Chesapeake Campus, and Bryant and
Stratton College, Virginia Beach, VA
Oral Testimony................................................. 52
Prepared Statement............................................. 53
Mr. David A. Harris, Professor of Law, University of Pittsburgh
School of Law
Oral Testimony................................................. 73
Prepared Statement............................................. 75
Mr. Hubert Williams, President, Police Foundation
Oral Testimony................................................. 79
Prepared Statement............................................. 81
Mr. George Gascon, Chief, Mesa Police Department, Mesa, AZ
Oral Testimony................................................. 83
Prepared Statement............................................. 84
Mr. Kris W. Kobach, Professor of Law, University of Missouri-
Kansas City School of Law
Oral Testimony................................................. 85
Prepared Statement............................................. 88
APPENDIX
Material Submitted for the Hearing Record........................ 245
PUBLIC SAFETY AND CIVIL RIGHTS IMPLICATIONS OF STATE AND LOCAL
ENFORCEMENT OF FEDERAL IMMIGRATION LAWS
----------
THURSDAY, APRIL 2, 2009
House of Representatives,
Subcommittee on Immigration,
Citizenship, Refugees, Border
Security, and International Law
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittees met, pursuant to notice, at 10:15 a.m.,
in room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law)
presiding.
Present from the Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law:
Representatives Lofgren, Jackson Lee, Waters, Gutierrez, King,
Harper, Poe, Chaffetz, and Smith (ex officio).
Present from the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties: Representatives Nadler, Watt,
Scott, Delahunt, Johnson, Conyers, and Franks.
Staff Present from the Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law:
Traci Hong, Majority Counsel; Lou DeBaca, Majority Counsel;
Andrea Loving, Minority Counsel; and Andres Jimenez, Majority
Professional Staff Member.
Staff Present from the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties: David Lachmann, Majority
Subcommittee Chief of Staff; Paul Taylor, Minority Counsel; and
Matt Morgan, Majority Staff Assistant.
Ms. Lofgren. This joint hearing of the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law, as well as the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, will come to
order.
We welcome to this joint hearing all of you. I would like
to thank our witnesses for being here to examine the public
safety and civil rights implications of State and local
enforcement of the Federal immigration laws.
This Congress has long recognized the particular threat
that immigrant women face in domestic violence. As recognized
by Legal Momentum, a respected organization that advocates for
the rights of women and girls, beginning in 1994 with the
Violence Against Women Act, known as VAWA, Congress created
special visas for undocumented women who are being abused by
their spouses so that they do not have to live in fear of
deportation if they complain to the police about abusive
spouses.
VAWA was reauthorized in 2000, along with the creation of
two new visas for undocumented victims of violence, those that
suffer from severe forms of human trafficking, and those who
are helpful in prosecuting crimes. These programs have been
repeatedly reauthorized and expanded by Congress over the last
decade, including, in 2008, with the William Wilberforce
Trafficking Victims Protection Reauthorization Act, to ensure
that victims of violence have an opportunity to escape their
abusers.
Unfortunately, due in part to bad implementation and poor
Federal supervision, in recent months I have begun to hear
story after story of the Federal program created by Congress in
1996 that appears to fly in the face of all the work Congress
has done to protect victims of violence. This program, known by
most as the 287(g) program, allows the Department of Homeland
Security to enter into agreements with State and local law
enforcement to deputize them to enforce immigration law.
While some may feel that the program is necessary to ensure
enforcement of immigration law, everyone should agree that it
should be implemented and supervised in an appropriate manner
to ensure the public safety and protection of civil rights.
Unfortunately, the stories I have been told over the last
several months suggest much more needs to be done to make sure
that the 287(g) agreements do not undermine the protection of
our communities, victims of violence, or civil rights.
Moreover, in just the last 2 years, 60 of 67 287(g)
agreements have been signed, despite the fact that this program
has been around for almost 13 years. With this recent explosion
in interest in 287(g) agreements, more and more jurisdictions
across the Nation are enforcing Federal immigration laws even
without entering into a 287(g) agreement with DHS.
Today we will hear from a witness who has stepped up to
tell us disturbing stories of abusive local law enforcement of
immigration law regarding people too afraid to tell their own
stories for fear of retaliation. Antonio Ramirez of Frederick,
Maryland will tell us of a woman who was afraid to call the
police when she was beaten up by her husband because he has
threatened to seek her deportation and take their child away
from her. She said she is so scared that she simply tolerates
the beatings instead of calling the police, who she believes
will deport her because of the stories she has heard of the
local police enforcing immigration law.
The media and attorneys representing Rita ``Fany'' Cote
tell us that Ms. Cote's sister called 911 because her sister's
boyfriend was choking her. When the police arrived, they had
trouble communicating with the victim, so the victim's
undocumented sister, Ms. Cote, who had better English skills,
offered to help translate. But the police checked everyone's
immigration status, and rather than arresting the boyfriend who
choked her, they instead arrested Ms. Cote. She had to leave
behind her three young U.S. Citizen children and her U.S.
Citizen husband and be taken to Lake County Jail, where the
Tavares Police Department held her for more than a week.
The disturbing stories go beyond victims of domestic
violence. One of our witnesses today, Julio Cesar Mora, a U.S.
citizen, born and raised in Arizona, was on his way to work
with his 66-year-old dad--a legal, permanent resident who has
lived in the U.S. since the 1960's--when two black SUVs with
Maricopa County police officers aggressively pulled them over.
Without explaining the reason for the stop, the officers told
Mr. Mora and his father to get out of their car, and they were
handcuffed. They were taken to his father's workplace, where an
immigration raid was underway. They were held there for several
hours until they had the opportunity to explain that they were
lawfully present in the U.S. As Mr. Mora explains, ``To this
day, I don't know why the officers stopped us. I don't think
it's fair the way we were treated.''
If this Congress is committed to protecting the public
safety in our communities, to protecting victims of crime, and
to protecting civil rights, then we are required to examine the
effects of State and local law enforcement of immigration law.
I look forward to hearing from our witnesses today. And I
know that they will help us conduct this very important
examination.
It is important that as we seek to enforce the law, that we
also live under the law. And that is what this hearing is about
today.
I would now recognize our distinguished Ranking minority
Member of the Subcommittee on Immigration, Citizenship,
Refugee, Border Security and International Law, Steve King, for
his opening statement.
Mr. King. Thank you, Madam Chair. I appreciate this
hearing. And I appreciate the witnesses coming forward to
testify. It is never easy to sit down before this Congress and
submit yourselves to the questions that will come from the
Members on this panel. But before we begin our discussion
today, I would like to set out the underlying Federal law that
governs State and local law enforcement.
The use of race or national origin in law enforcement is
only strictly prohibited when race or national origin is the
sole criteria for the law enforcement action--in fact, I should
say sole criterion--and it has to be based upon an invidious
purpose.
As the Supreme Court made clear in the 1996 case of Bush v.
Vera, mere racial disproportions in the level of law
enforcement activity for a particular crime may be
unobjectionable if they merely reflect a racial
disproportionality in the commission of that crime.
To give an example, the Supreme Court has upheld a program
in which vehicles passing through a permanent checkpoint 66
miles from the Mexican border were visually screened by Border
Patrol agents for occupants who appeared to be of Mexican
national origin. In that case, and in the United States v.
Martinez-Fuerte, the Court held that it was constitutional for
the Border Patrol, after routinely stopping or slowing
automobiles at a permanent checkpoint, to refer motorists
selectively to a secondary inspection area for questions about
citizenship and immigration status. The Court held that there
were no constitutional violations as long as such referrals
were made largely on the basis of apparent Mexican ancestry.
The Supreme Court made clear in the 1981 case of Haig v.
Agee that ``such holdings are appropriate given that it is
obvious and unarguable that no government interest is more
compelling than the security of the Nation.''
Even beyond the context of border security, law enforcement
has broad discretion to reasonably rely on the factors of race
and national origin as long as such criteria are not the sole
criterion that invidiously motivates action by law enforcement.
Indeed, under the Department of Justice's own official
guidelines on the use of race by law enforcement, it is made
clear that in conducting an ongoing investigation into a
specific criminal organization whose membership has been
identified as being overwhelmingly of one ethnicity--Mara
Salvatrucha, for example--law enforcement should not be
expected to disregard such facts in pursuing investigative
leads into the organization's activities.
The Department of Justice guidelines further state that
Federal authorities may also use reliable, locally relevant
information linking persons of certain race or ethnicity to a
particular incident, unlawful scheme, or ongoing criminal
enterprise, including a gang, even absent a description of any
particular individual suspect.
Of course, law enforcement is at its discretion and can
impose on itself restrictions beyond what is prohibited by
constitutional law and precedents, but those decisions should
be made by State and local law enforcement working to protect
citizens in local jurisdictions, not by Members of Congress
thousands of miles away here in Washington, D.C.
So what are the effects of these policies? I would suggest
that, when used correctly by law enforcement officials, the
effect is safer communities. And safer communities are also
created when State and local law enforcement officials help to
enforce Federal immigration law. That is made even more clear
when we look at examples in which State or local law
enforcement has failed to do so.
For instance, four of the 9/11 hijackers had documented
contact with State or local law enforcement officers after
entering the United States. All four were pulled over for
traffic infractions at one point in the months before September
11, 2001. Unfortunately, none were reported to Federal
immigration officials, despite their violations of Federal
immigration laws. We all know the devastating results of the
hijackers' malicious activities, and can only speculate how
many lives might have been saved.
Operation Community Shield is an ongoing example of
benefits of coordination among Federal, State and local law
enforcement entities. It is a law enforcement program in which
Federal, State and local law enforcement officials work
together to conduct criminal investigations and other law
enforcement operations against violent criminal alien street
gangs. According to ICE, since Operation Community Shield's
inception, 7,655 street-gang members and associates from over
700 different gangs have been arrested and are no longer on
America's streets; 107 of those arrested were gang leaders, and
more than 2,555 of those arrested had violent criminal
histories.
By virtue of their sheer numbers, 740,000 State and local
law enforcement personnel come into contact with many more
people on any given day than do Federal enforcement officials.
This contact can result and has resulted in the arrests of
illegal immigrants who would otherwise be free to commit future
crimes. Remember, no crime by illegal aliens would ever occur
if they were removed from the United States before they could
strike. These are truly senseless crimes.
Sadly, the state of local law enforcement officers who came
into contact with Alfredo Ramos prior to March 30, 2007 were
prohibited by their jurisdictions from coordinating with
Federal immigration officials. I say sadly, because since on
that day, Ramos killed 16-year-old Tessa Tranchant and her 17-
year-old friend, Allison Kunhardt. We will hear shortly about
the devastating effects of lack of law enforcement coordination
from Tessa's father, who is here today.
Tessa, Allison, their families, and the other victims of
criminal aliens, are the ones whose country failed to protect
them. They are the true victims. If we have to choose between
political correctness and ensuring the safety of the American
people, I will choose the American people in a heartbeat.
Thank you, Madam Chair. I yield back.
Ms. Lofgren. I would now recognize the Chair of the
Constitution Subcommittee, Mr. Nadler, the co-convener of this
hearing, for his opening statement.
Mr. Nadler. Thank you, Madam Chairwoman. I am pleased to be
able to join you in holding this hearing on the civil rights
implications of State and local enforcement of Federal
immigration laws.
This is the second joint hearing being held by the
Constitution and Immigration Subcommittees. That is significant
because we have received many reports from around the country
about law enforcement officials in some jurisdictions going
beyond the law and engaging in abusive activities we had hoped
were no longer found in this country.
It is important that the law is enforced effectively. It is
also important that the rule of law is respected by everyone,
especially by those charged with enforcing it. Unfortunately,
it appears that in their zeal to enforce immigration laws, some
local law enforcement officials have gone far afield, violating
our civil rights laws, violating the Constitution, violating
the rights of U.S. citizens and of noncitizens who are here
legally. That is not law enforcement, that is subversion of the
law.
We need to ask some very important questions today. Most
importantly, is it appropriate to have local police enforcing
the immigration laws, or is that Federal function better left
to the Federal Government? If it is appropriate, are Federal
dollars being spent correctly, with proper oversight and within
the requirements of the law? If they are not, if a particular
local police enforcement agency is violating the law
systematically, should the Department of Justice revoke the
section 287(g) contract on the grounds that that police agency
is not conducting itself within the bounds of the law and
cannot be trusted to enforce the law under the law?
In some instances, we have seen a pattern and practice of
violating people's civil rights. Reports of widespread racial
profiling, threats against the exercise of first amendment
rights, retaliation against newspaper reporters who print
unflattering comments about local officials, selective
prosecutions, the abuse of arrestees and prisoners, among other
problems, demand a careful investigation.
We have witnesses here today who will tell of some very
compelling and distinguishing stories. I hope the Members of
this Committee will pay careful attention.
Whatever your views on immigration policy, I hope we can
all agree that the police power does not give anyone the right
to declare open season on anyone who may ``look foreign'' to
someone else. That is not the American way. In fact, It is
illegal, and the Federal Government has a duty, just as we did
when local law enforcement colluded with the Ku Klux Klan many
years ago, to intervene and protect individual rights against
local law enforcement if they are violating such rights,
without fear or favor.
I thank the distinguished Chairwoman, and I yield back the
balance of my time.
Ms. Lofgren. The gentleman yields back.
I am advised that the Ranking Member of the Constitution
Subcommittee would like to waive his opening statement, so we
will go to the Ranking Member of the full Committee, Mr. Smith,
for his opening statement.
Mr. Smith. Madam Chair, I hope this hearing will explore
the detrimental effects of sanctuary cities that prohibit State
and local law enforcement officials from helping enforce
immigration laws and making our communities safer.
The 740,000 State and local law enforcement officials in
the United States should do all they can to protect the
American people. That includes helping enforce immigration
laws. Otherwise, criminals and even terrorists are able to prey
on innocent victims.
This very harm occurs on a regular basis in sanctuary
cities across the United States. For instance, the director of
A Christmas Story, Bob Clark, was killed by an illegal
immigrant drunk driver in Los Angeles in April, 2007. An
illegal immigrant gang member shot three students in Newark,
NJ, execution style in August 2007. He was free on bail, and
was facing charges of aggravated assault and sexual abuse of a
child at the time of the murders.
An illegal immigrant from Mexico was arrested in January
2008 after DNA matched him to a series of rapes of teenage
girls in Chandler, AZ. Seventeen-year-old Jamiel Shaw, Jr. was
murdered by an illegal immigrant in Los Angeles in March 2008.
He had been released from jail on an assault charge the day
before he killed Shaw.
An illegal immigrant who had numerous past violent crime
convictions savagely murdered Tony, Michael and Matthew Bologna
in San Francisco in July 2008. The father and two sons were all
shot while sitting in a car.
Last November, 83-year-old Lila Meizell was murdered in
Wheaton, Maryland by three illegal immigrants who beat her to
death and burned her alive to cover up a check-writing scheme.
An illegal immigrant gang member shot 14-year-old Tai Lam
in October last year in Montgomery County, MD.
Unfortunately, there are countless more examples. The
287(g) program was created in the Illegal Immigration Control
and Immigrant Responsibility Act of 1996, which I co-authored.
The program allows DHS to enter into an agreement with a State
or locality so their law enforcement officers can assist in the
investigation, apprehension, and detention of illegal aliens.
It is purely voluntary on behalf of local law enforcement
officials.
In recent years, the annual number of jurisdictions
participating has risen dramatically from one in 2002 to 67
currently. In fact, DHS cannot keep up with the increased
demand. In fiscal year 2007, ICE received 69 new applications.
According to ICE, the vast majority were rejected because of
limited funding.
According to ICE, ``Since January, 2006, the 287(g) program
is credited with identifying more than 79,000 individuals,
mostly in jails, who are suspected of being in the country
illegally.''
When we wrote the bill that created section 287(g), our
goal was to help local law enforcement officials reduce the
crimes committed by illegal immigrants. Law enforcement
officials have testified that this voluntary program does work.
Also, as the co-author of the legislation enacting the
287(g) program, let me state clearly that it was not our intent
that the program would only be used to address serious criminal
activity. The program was created to let State and local law
enforcement officials help enforce all immigration laws and to
remove illegal immigrants from the streets before they go on to
commit preventable crime.
Those who are serious about public safety should not only
support the program but also call for its expansion. We should
do more, not less, to protect the lives and well-being of all
Americans. We should do more to make our communities safer.
I thank you, Madam Chairman, and I yield back.
Ms. Lofgren. The gentleman yields back.
I would now recognize the Chairman of the House Judiciary
Committee, the Honorable John Conyers, for his opening
statement.
Mr. Conyers. Thank you, Madam Chairman. And I wish to thank
all my colleagues for being here. But before I do, something
unusual has happened in the Judiciary Committee that I would
take a moment to bring your attention to. We have had a
nomination of Lou DeBaca, Esq., to be Ambassador at Large for
Human Trafficking in the State Department, made recently by the
President of the United States. He has to go before the Senate
for confirmation. So we would like to just have recorded here a
round of applause for him. It doesn't commit you to support him
or testify against him, but let's----
Ms. Lofgren. Would Lou DeBaca please stand up?
Thank you, Mr. Chairman. And I think on a bipartisan basis,
we do recognize the tremendous work that Lou has done for the
Committee, and especially for the human trafficking bill that
was so broadly supported across the aisle and brought to the
President and is a triumph. And really Lou's effort made that
happen. It was a terrific service to the country.
Mr. Conyers. I yield to Steve King.
Mr. King. I thank the Chairman, and I appreciate the
acknowledgement.
I used to think that when the lights are on at night, it
was because somebody left them on. But I submit, instead, it is
Lou working late at night to do his job and do his duty. So
that is an example of the kind of dedication we have here
across our staffs on both sides of the aisle. I think it is
very appropriate for us to acknowledge and celebrate that kind
of effort and the kind of career path that we see Lou on. So I
congratulate you and I appreciate the work you do.
Mr. Conyers. Thank you very much. To have both Committees
here, both Subcommittees, and to have our colleagues, Ted Poe
and Greg Harper, join us in the proceedings today is very
significant to me.
We are here talking about a very small part of our
immigration problems. Out of 17,000 law enforcement
jurisdictions, we have 67 that are using 287(g) that requires
our presence here today. We even have Professor Harris,
formerly at Toledo Law School, now at Pittsburgh University Law
School, who has written two books on the subject of profiling,
who will help make it clear to me and Steve King that racial
profiling, as a policy in and of itself, is not acceptable
except where it is in connection or in relationship to a
specific crime, where a suspect's description comes in that
way. But otherwise, it is considered a pretty gross violation
of the 14th amendment's equal protection clause, but we will be
hearing more about that as we go on.
In a true spirit of bipartisanship, I would like to remind
the Committee that President George W. Bush, in his first
Inaugural Address, spoke very strongly against racial profiling
as an unsatisfactory police technique. And Attorney General
Ashcroft, who has sat in this room on many occasions, even
recently, had joined with him in decrying the inaccurate or
improper use of racial profiling.
And so we are talking about 67 jurisdictions out of 17,000
where frequently sheriffs have made a practice of racial
profiling for political gain. I hate to say this in this day
and age, but immigrant bashing is a pretty popular sport,
unfortunately, in some areas. When we first started off on the
issue of racial profiling, the phrase was ``driving while
Black.'' Driving while Black, you get pulled over, period.
``What did I do wrong?'' ``Look, buddy, give me your license
and proof of ownership and insurance and we will talk about it.
We have got a right to stop anybody that we think is violating
the law.'' That is profiling.
Now Hispanic Americans are even more frequently being
targeted. And so I commend Chairman Nadler and Chairwoman
Lofgren for calling us together for this hearing.
Ms. Lofgren. Thank you, Mr. Chairman. By unanimous consent,
the Chairman is granted an additional 30 seconds so he may
yield to Mr. Watt.
Mr. Watt. I thank the gentlelady for bending the rules in
that way.
I really wanted recognition only to express my thanks to
the Chair of both Subcommittees for addressing an issue that is
raging in local communities in which these programs exist and
in local communities in which they do not exist because there
is a significant movement, I think, to some extent driven by
money, to expand these programs.
The issues that Mr. King and Mr. Smith on one side have
outlined and the ones that have been outlined on our side about
profiling and other concerns about constitutional rights are
all legitimate. And these issues have been addressed in local
communities, rather than here where they need to be addressed.
So I just wanted to express thanks and hope we can find a happy
balance.
Ms. Lofgren. And the Chairman is granted an additional 30
seconds by unanimous consent so he may yield to Mr. Poe.
Mr. Poe. Thank you very much. Of course profiling a person
based on race is abhorrent to our system, but we must also deal
with the reality of the problems that we have with illegals
that have committed crimes in this country.
The city of Houston, TX, has over 400,000 illegals, but yet
they claim they are not a sanctuary city. And they have finally
decided, based upon the fact that the last several peace
officers who have been shot have been shot by people illegally
in the country, to move forward with the 287(g) program. I
think we should explore that and make sure that the 287(g)
program works, and that local law enforcement that wants to use
it to help prevent people from committing crimes in this
country who are from foreign countries, wherever they're from,
should be enhanced rather than rejected.
I yield back.
Ms. Lofgren. The gentleman yields back.
All of those bells and whistles mean that we have been
called to the floor of the House for a series of votes. What I
would like to do is to introduce the witnesses, kind of as a
teaser for those watching on the Web, so that they will
continue to watch and we will come back.
I think we have at least an hour of votes, honestly, so we
are going to set a time of 11:45 to reconvene so that people
will have a chance--there is a cafeteria in the basement; you
can get a cup of coffee, and you won't have to sit here in this
room for an hour waiting for us to come back.
But before we go, let me introduce the panel of witnesses.
First, It is my pleasure to introduce Julio Cesar Mora. Mr.
Mora is a 19-year-old native of Arizona. He was raised by his
father, Julian Mora, and is the youngest of five kids. He
attended Estrella High School. And on February 11, 2009, he was
detained with his father by the Maricopa County Sheriff's
Office for close to 3 hours at the site of Handyman
Maintenance, Incorporated in Phoenix, Arizona.
Next, I would like to introduce Antonio Ramirez. Mr.
Ramirez is an American citizen. He has dedicated his life to
helping low-income families and immigrants here in the United
States as well as in Mexico. Upon coming to the United States
more than 20 years ago, Mr. Ramirez had his sights set on
Manhattan, but he fell in love with Frederick, Maryland where
he has created his new life.
Mr. Ramirez immediately became involved in his new
community by volunteering at a hospice serving individuals with
HIV, and at a nursing home teaching English, and working as a
substitute teacher in public schools.
In 2003, Mr. Ramirez helped start a nonprofit organization
called Nuestra Casa del Pueblo, Our House of the People, which
assists local Latino and immigrant populations to integrate and
to improve their lives. The organization also focuses on
improving relationships between police agencies by teaching
officers basic Spanish and Latino culture.
Unofficially, Mr. Ramirez acts as a liaison for many in the
Latino community in organizations like the Frederick County
Health Department, legal aid groups, and the Frederick County
Community Action Agency, as well as the Frederick County
Department of Social Services, as well as many others.
Next, I would like to introduce Deborah Weissman. Professor
Weissman is the Reef Ivey II distinguished professor of law and
director of clinical programs. She is a Phi Beta Kappa graduate
of Syracuse University, and she graduated cum laude from
Syracuse University Law School.
Prior to teaching law, she has had extensive experience in
all phases of legal advocacy, including labor law, family,
education-related civil rights, as well as immigration law, in
Albuquerque, New Mexico, and Tampa, Florida, and as a partner
in a civil rights firm in Syracuse, New York. From 1994 to
1998, she was deputy director and then executive director at
Legal Services of North Carolina.
Finally, I would like to introduce Professor Ray Tranchant.
Mr. Tranchant is currently director of the Advanced Technology
Center in Virginia Beach. He is also an adjunct professor at
Cambridge College in Cambridge, Massachusetts, Chesapeake Bay
campus, and Bryant and Stratton College in Virginia Beach,
teaching mathematics, IT project management, and e-commerce
management courses.
Mr. Tranchant is a graduate of the United States Naval
Academy, a former naval flight officer, and a former public
school teacher.
Mr. Tranchant's advocacy for border security and national
security resulted primarily from the tragic March 2007 murder
of his 16-year-old daughter Tessa by an illegal immigrant who
had several previous criminal convictions.
We look forward to hearing the testimony of all four
witnesses, but we will do so in about an hour. So this hearing
is recessed. We will see you back in approximately an hour.
[Recess.]
Ms. Lofgren. I am hopeful theMinority will be here soon.
Ah, Mr. King is here; that is great. But because of our recess
for votes--and we will be called again to votes in about an
hour--I would like to begin hearing the testimony.
Under our rules, the full written statement of each witness
will be made part of our official record. And so what we would
like to ask you to do, as much as possible, is to deliver your
oral remarks in about 5 minutes.
There are two little odd machines there on the desk, and
that is our lighting system that lets you know when your time
is almost up. When the yellow light goes on, it means that you
have 1 minute to go. And when the red light goes on, it means
you have actually used 5 minutes. And, at that point, we won't
cut you off mid-sentence, but we would ask you to please wrap
up, because we have a second panel after you. And we want to
make sure that we hear from everybody who has traveled from, in
some cases, great distances to be here and to say something
important to the Congress.
So, Mr. Mora, we would like to begin with your testimony
now, please.
TESTIMONY OF JULIO CESAR MORA, AVONDALE, AZ
Mr. Mora. Hello. My name is Julio Cesar Mora. I am 19 years
old, and I am from Avondale, Arizona. I have three brothers,
one sister, and we were all born in the United States. My
mother passed away when I was still little, so I have mostly
been raised by my dad. My dad is 66 years old, and he still
works so that he can support all of us. He is a lawful,
permanent resident.
In February, I was driving with my dad to work when we were
stopped by the police. We left Avondale around 5 a.m. To go to
my dad's work, HMI Contracting, a landscaping business in
Phoenix. On the way, we passed two black police SUVs parked
under a bulletin board. Then, about 15 seconds later, one of
the SUVs caught up and stopped right in front of us. My dad had
to slam on the brakes to avoid hitting the SUV that was in
front of us because it was so aggressive.
I didn't understand why the SUV trapped us like that. My
dad was driving just fine. One of the officers came up to the
window and asked us where were we going. We told him my dad was
just going to work. The police made us get out of the car. They
patted us down and tied our hands together with zip ties like
we were criminals. They tied my arm really tight, and it left
marks on my arms. I later learned that the officers were
deputies of the Maricopa County Sheriff's Office.
The deputies brought us to HMI, where there were about 80
people lined up and a lot of other police officers guarding
them, telling them to turn off their cell phones. The officers
were carrying guns, and some were wearing face masks.
My dad asked if he could use the bathroom; the officer said
no. My father asked five times to use the bathroom. His stomach
was really hurting. I was worried because he has diabetes and
has a hard time holding it. My dad eventually got to go, but it
wasn't until after he asked several more times and told an
officer he was going to go right there in front of everyone.
And even then, he had to go outside behind a car. It really
hurt me that they embarrassed him like that.
Later, I also had to go, and they let me use the bathroom,
but three officers guarded me and refused to untie my hands. I
tried to go with my hands tied but couldn't. When I asked one
of them for help, he said, ``What is the matter? You can't find
it?'' I felt like they were making fun of me and felt very
ashamed.
I went back to stand in line. When I got to the front of
the line, I told officers that I am a U.S. citizen and was born
here. I gave my Social Security number. He checked me in the
computer, and finally they let me go, almost 3 hours after it
all began. They let my dad go, too, because he is a lawfully
permanent resident.
To this day, I don't know why the officers stopped us out
of all the cars on the road. I don't think it is fair, the way
we were treated. The police are supposed to keep us safe, but
they are arresting us instead of the real criminals. I still
think of that day sometimes, when I had to go to the bathroom
in front of the police who mocked me, they took away our pride,
my dad's and mine.
Thank you for letting me speak today.
[The prepared statement of Mr. Mora follows:]
Prepared Statement of Julio Cesar Mora
__________
Ms. Lofgren. Mr. Mora, we thank you for your testimony and
for coming all the way to appear before us today.
Mr. Mora. Thank you.
Ms. Lofgren. Mr. Ramirez, we would be pleased to hear from
you.
TESTIMONY OF ANTONIO RAMIREZ, COMMUNITY ADVOCATE, FREDERICK, MD
Mr. Ramirez. Thank you, Chairman Lofgren, Chairman Nadler,
and Ranking Member King and Ranking Member Sensenbrenner and
Members of the Subcommittee. And thank you for the opportunity
you gave me to testify in front of you.
My name is Antonio Ramirez, and I am here today very sad. I
wish people like me who wash, who build houses, who do the hard
jobs in Fredrick were here. But one of the reasons for me to be
a citizen is that I can speak for others because they cannot
speak for themselves.
And I told my friends I have a great opportunity to speak
for everybody in Frederick, and they told me, ``Antonio, it is
not a good idea. They can do something bad to you.'' And I
said, ``Don't worry. I will bring with me the Constitution of
the United States and a copy of my citizenship and the faith in
God they don't treat me like criminal because of the way I
look.'' If I put it best, that is because I give respect to
everybody. But I work very hard.
And we are now the target in Frederick, not because of our
background; it is because of our skin, the way we look. Even
when we are residents, legal citizens, we are stopped, we are
harassed. And we lost the trust--we lost our trust in the
police. It is not because we come from countries where the
police is corrupt. No, it is because of cultural fear, to be
afraid to report any crime.
I know a woman who lives with domestic violence, and she is
so afraid of losing her son and having him taken away from her.
I know there are other people like me, who look like me, they
have papers. The police will ask, ``Where did buy that license?
Where did you get a Social Security card?'' I pay my taxes.
And I am very sad here to tell you, and I feel sad because
I am a human being, forget about the color of my skin, forget
about my accent, look at a human being under this Constitution,
when everybody has equal opportunities. And it is very sad
after 400 years to keep talking about immigration. This is not
a new topic for the United States. United States was created
for immigrants, and now in Frederick we are treated badly.
I have lived in and around Frederick for the last 20 years,
and the last 2 years they are very afraid. And you see in my
testimony what I said. I can make a list. It is not enough,
three pages, what has happened in Frederick. I can make you
more pages.
And maybe all you see is, ``Oh, there is another Latino
whining.'' No, it is another human being who lives in the
United States, under the greatest country in the world. And I
can tell you, other friends are being stopped because they have
something hanging from their mirror. That is the excuse. It
happened to me. I was driving in the Hillcrest neighborhood,
and they stopped me, and the police told me he thought I don't
have my seatbelt on. When he hear I can articulate some
English, he stop a little bit. He checked my license, and he
let me go. And I know other people, they have been stopped
because they are driving slowly. And I know other people,
citizens, residents, they are asking for green cards and Social
Security.
And I want to talk also about, I have offered many times to
the sheriff in Frederick to help him to do the 287 the right
way, if there is a right way. And it is not the first time that
I have worked with the local police. Years ago, I developed a
program with the city police, the sheriff police, a sensitivity
cultural program, 8-week program. When all the police come to
my training, our class, to learn who we are, why we are in
Frederick, to know more about us. And I really am very sad
today, after I offered to work with the sheriff together, he
never took me seriously. He never paid attention to me. He just
listen to me and let me go.
I am very proud to be American. There is a reason I carry
the Constitution. This is my Constitution I received when I was
given my citizenship, and I keep it with me. This is my hope,
this is my hope today, for justice for all. This is my hope
today. Don't give me a title, don't target me. I am a person
like you.
And I can mention all the incidents that have happened in
Frederick, all the families that are destroyed for 287(g). And
I offered to the sheriff to work with me. And he is working
with another organization, a nativist extremist group, Help
Save Maryland. What is the difference between that group and
myself? I can help him to catch the real criminals. And I offer
my job free.
Like I told him, just because I speak broken English does
not mean that I don't love this country. I love this country. I
give my life, I believe in this country, it is the reason I am
here. I am here, and I am proud to be American. God bless you,
America.
[The prepared statement of Mr. Ramirez follows:]
Prepared Statement of Antonio Ramirez
__________
Ms. Lofgren. Thank you very much, Mr. Ramirez.
Professor Weissman?
TESTIMONY OF DEBORAH W. WEISSMAN, REEF C. IVEY II DISTINGUISHED
PROFESSOR OF LAW, DIRECTOR OF CLINICAL PROGRAMS, UNIVERSITY OF
NORTH CAROLINA AT CHAPEL HILL SCHOOL OF LAW
Ms. Weissman. Good morning, Chairwoman Lofgren, Ranking
Member King, Chairman Nadler, and Members of the Subcommittees.
My name is Deborah Weissman, and I a professor at the
University of North Carolina School of Law. And I am a coauthor
of a report entitled, ``The Policies and Politics of Local
Immigration Enforcement Laws.'' The report focused on
implementation of the 287(g) program in North Carolina and the
impact on our communities when local law enforcement agencies
undertake immigration enforcement duties. And I thank you for
the opportunity to appear before you today.
In North Carolina, several communities that are
participating in the 287(g) program have histories of racial
violence and traditions of White supremacy, which often
contribute to an environment hostile to the local Latino
community. 287(g) whether it operates in the field or in a
jail, is not a program that can be simply handed off to
localities without consideration of history and context. It is
a program that often serves to reinforce local practices of
racism and racial bigotry.
In North Carolina, some local elected officials, including
those who have signed on or supported 287(g) treatments, have
publicly expressed views that have denigrated immigrants
regardless of their status, based on racist stereotypes and
baseless assumptions. Let me provide some examples.
Shortly after signing on to 287(g) Sheriff Terry Johnson of
Alamance County made brazenly racist claims about Mexicans,
stating, ``Their values are a lot different, their morals, than
what we have here. In Mexico, there is nothing wrong with
having sex with a 12- or 13-year-old girl.'' Before the 2004
Presidential election, the same Sheriff Johnson threatened to
go door to door to investigate the immigration status of
registered voters with Hispanic last names, a scare tactic not
new to African-Americans in our State.
Consider the comments of Johnston County Sheriff Steve
Bizzell. Bizzell was a member and then president of the North
Carolina Sheriff's Association in 2007, the same year that the
association issued a resolution referring to undocumented
immigrants as ``illegal alien invaders.'' Bizzell stated
Latinos are ``breeding like rabbits'' and that they ``rape,
rob, and murder American citizens.'' He called Mexicans
``trashy.'' He reminisced about the Johnston County of his
youth, when immigrants were ``all in a group, down a path
somewhere, in a camp,'' even though he admitted that living
that way was bad for them as human beings.
Through 287(g) agreements, deputies and officers across the
State who may be lead by Sheriff Johnson or influenced by
Sheriff Bizzell have the resources and virtually unfettered
authority to act on a discriminatory sentiment that they have
espoused. Such a situation cultivates the illegal activity of
racial profiling. Just last month, hate groups were invited to
join in the battle over whether counties should sign on to
287(g). And this was not the first time that hate groups have
been implicated in North Carolina's response to the increasing
rates of Latino immigrants.
History demonstrates that there is a very thin line
dividing anti-immigrant laws from those that diminish the civil
rights and due process protections of citizens. And I would
like to share two stories today.
The first, Paul Cuadros, a professor in the school of
journalism at UNC and a U.S. Citizen. He describes being pulled
over on his way to a soccer game with his friend, Francisco, in
Chatham County, where there is currently contentious debate
about whether to sign on to 287(g).
He says, ``I knew instantly what was going to happen.We
were two Hispanic men in dark sunglasses on a slow Sunday
afternoon. After asking for my license and registration and
keeping me and Francisco waiting for what seemed an unusually
long time to check my information, the officer told me why he
had stopped me. He said my license plate monthly sticker had
faded. The year was fine--new, in fact--but the month was hard
to see. He just wanted to let me know that. I knew exactly what
he wanted me to know.'' Professor Cuadro says, ``If you have
never been racially profiled, then you don't know how much
control it takes to restrain your anger over the violation of
your civil liberties.''
Another example is that of a woman I will call ``E,'' a
naturalized U.S. citizen who complained to her employer in
Alamance County of significant mistreatment and discrimination
at work. He told her she was crazy to think that she would have
any recourse, and because she was an immigrant she should stop
complaining. He referred to the passage of 287(g) as an
indication of her lesser and vulnerable status.
And this is not the only example of immigrants whose legal
rights are blunted because of this program. One major concern
is the impact that this program is having on victims of
domestic violence and other crime victims who are terrified to
call the police for protection, seek assistance, and aid in law
enforcement efforts. These are just a few of the examples that
indicate the rippling effect of 287(g) in the community.
Given the local cultural practices and histories that
mediate the implementation of what remains Federal law and
standards, we need a moratorium on this program until there can
be an assessment and until greater safeguards, oversight, and
accountability can be provided.
Thank you.
[The prepared statement of Ms. Weissman follows:]
Prepared Statement of Deborah M. Weissman
__________
Ms. Lofgren. Thank you very much, Professor Weissman.
Finally, Professor Tranchant?
TESTIMONY OF RAY TRANCHANT, OPERATIONS DIRECTOR, ADVANCED
TECHNOLOGY CENTER, VIRGINIA BEACH, VA, ADJUNCT PROFESSOR AT
CAMBRIDGE COLLEGE, CAMBRIDGE, MA, CHESAPEAKE CAMPUS, AND BRYANT
AND STRATTON COLLEGE, VIRGINIA BEACH, VA
Mr. Tranchant. First, I want to thank you distinguished
ladies and gentlemen for allowing me to share my testimony with
you. I am not here personally for your sympathy but may offer
maybe a couple of solutions to you elected officials from my
perspective, a man for 2 years that has intensely studied the
problems and consequences of lax and opposing immigration laws.
Two years ago this week, my 16-year-old daughter, Tessa,
and her best friend, Ali Kunhardt, were killed as they were
sitting at an intersection waiting for a red light to change in
Virginia Beach. They both had their seatbelts on and were doing
nothing wrong. They were really wonderful kids with really
bright futures. But their lives ended suddenly and
unnecessarily when a drunken, illegal immigrant hit them at
more than 70 miles an hour. Ramos, whose blood alcohol level
was almost three times the legal limit, didn't see the girls,
the car, or the red light because of his intoxication, period.
The crash killed Tess and Ali instantly; Ramos walked away
unhurt.
At first, my focus was on mourning my daughter and her
friend. Our community, friends, and family stood with us,
honoring their memories. But anger and feeling of betrayal took
over when I discovered at the trial that Alfredo Ramos could
have been and should have been deported long before he ran that
red light.
In fact, this accident wasn't the first time that Ramos
walked away from a drunken incident. It wasn't even the second
time. Ramos had been arrested twice before for driving under
the influence and public intoxication. He had a fake driver's
license from Florida and could not speak English at all. But
because of sanctuary policies in Virginia Beach and Chesapeake,
Virginia, nobody--not the judge in the prior DUI case or the
police who arrested him in the prior incidents--questioned him
about his immigration status. Instead of being deported to his
home country, he stayed on the streets of Virginia Beach, to
drink, drive, and subsequently kill these two beautiful girls
in a way that displayed a wanton disrespect for the laws of our
land.
He seemed invisible to the system. I am not sure if your
American kids or relatives would have had the same opportunity
to fail in such a way. They probably would have been
incarcerated, legitimate licenses suspended. Insurance
payments, they would go through the roof. And they would have
had to pay very large attorneys' fees. Ramos pays nothing, has
no driver's training, no insurance, no lawyer, no license.
And now the American people have to spend about $30,000 a
year incarcerating him for 40 years, at a cost of about $1.2
million. And that is not including the uninsured motorist
claims that probably equal a half a million. We are talking $2
million here. Ladies and gentlemen, this happens twice a month
in this country.
The deaths garnered local and national media attention: The
Virginia Pilot, The Washington Post, The American Chronicle,
MSNBC, CNN, FOX News. Mr. O'Reilly and Geraldo argued over it
on Fox and talked about Tess and Ali, and their story shed
light on the tragic consequences of lax immigration policies.
Gladly, some important things have changed in Virginia
Beach and Chesapeake in the last 2 years. Virginia Beach now
requires that police check the immigration status of all
arrested. Virginia Beach and Chesapeake passed measures
requiring that companies doing business with the cities pledge
not to hire illegal immigrants. Last July, a statewide law took
effect which requires local jails to contact Federal
authorities to check the immigration status of all foreign-born
inmates, irrespective of whether they are in the country
legally or illegally. And local police officers are working
more closely with Federal authorities than ever before.
But the threat still continues. Despite recommendations
from the State's Attorney General and the Virginia State Crime
Commission, Virginia's Governor has yet to ask Federal
authorities for a 287(g) agreement. And ICE may not have the
resources to support that agreement anyway. The 287(g) program
would allow the State to enter into an agreement with the
Federal Government so that the State law enforcement officers
can assist in the investigation, apprehension, and detention of
illegal immigrants.
Opponents of this cite a supposed chilling effect on
cooperation between immigration communities and police, the
cost of the program, or the potential for racial profiling as
reasons to reject this. Well, as I testify before you today, I
expect to hear many of these arguments. While I sympathize with
those arguments, I am not compelled. I know what chilling is:
They happen on the average of twice a month with illegal
immigrants in America, transparent criminals in a broken system
that lets them kill or injure honest citizens.
A family should not have the mourn the death of a loved one
just because of an unrelated policy or the political
correctness of not offending someone or inconveniencing a few
people here or there. This prevents us from making our
community safer, a constitutional right to all citizens,
safety.
Newsweek columnist Robert Samuelson recently wrote, ``We
face a choice between a society where people accept modest
sacrifices for a common good or a more contentious society
where a group selfishly protects their own benefit.'' I would
have to tell you now that the causality of Tess's death was the
failure to enforce this law.
Thank you.
[The prepared statement of Mr. Tranchant follows:]
Prepared Statement of Ray Tranchant
First I want to thank you distinguished Ladies and Gentlemen for
allowing me to share my testimony with you. I am not here personally
for sympathy, but may offer a couple of solutions to the Elected
Officials from my perspective, a man that for 2 years has intensely
studied the problems and consequences of lax and opposing Immigration
Laws.
Two years ago this week, my 16-year-old daughter, Tessa, and her
best friend, Ali, were killed as they were sitting at an intersection
waiting for a red light to change. They both had their seatbelts on and
were doing nothing wrong.
They were wonderful girls with bright futures.
But their lives ended suddenly and unnecessarily when a drunken
illegal immigrant hit them at more than 70 miles an hour. Alfredo
Ramos, whose blood alcohol level was almost three times the legal
limit, didn't see the girls' car or the red light and couldn't because
of his intoxication. The crash killed Tessa and Ali instantly. Alfredo
Ramos walked away unhurt.
At first, my focus was on mourning my daughter and her friend. Our
community, friends and family stood with us, honoring their memories.
But anger and a feeling of betrayal took over when I discovered at
the trial that Alfredo Ramos could have been--should have been--
deported long before he ran that light. In fact, this accident wasn't
the first time that Alfredo Ramos walked away from a drunken incident.
It wasn't even the second time.
Alfredo Ramos had been arrested twice before--for driving under the
influence (DUI) and public intoxication. He had a fake driver's license
from Florida and could not speak English.
But because of Sanctuary policies in Virginia Beach and Chesapeake,
Virginia, nobody--not the judge in a prior DUI case or the police who
arrested him in the prior incidents--questioned him about his
immigration status. Instead of being deported to his home country, he
stayed on the streets of Virginia Beach to drink, drive, and take two
innocent lives in a way that displayed a wonton disrespect for the laws
of our land.
He seemed invisible to the system. I'm not sure if your American
kids or relatives would have had the same opportunity to fail. They
probably would have been incarcerated, legitimate license suspended,
insurance payments would go through the roof, and they would have had
to pay large attorney's fees. Ramos pays nothing, has no driver's
training, no insurance, no lawyer, no license, and now the American
People have to spend approximately $30,000/ year for 40 years
($1,200,000) to rehabilitate--then deport him. The Taxpayers have to
pay for it!
The deaths garnered local and national media attention: The
Virginia Pilot, The Washington Post, The American Chronicle, MSNBC,
CNN, Fox News, and many others wrote and talked about Tessa and Ali.
Their stories shed light on the tragic consequences of lax immigration
policies.
Gladly, some important things have changed in Virginia Beach and
Chesapeake in the last two years. Virginia Beach now requires that
police check the immigration status of all arrested. Virginia Beach and
Chesapeake passed measures requiring that companies doing business with
the cities pledge not to hire illegal immigrants. Last July, a
statewide law took effect which requires local jails to contact federal
authorities to check the immigration status of all foreign-born
inmates, irrespective of whether they are in the country legally. And,
local police officers are working more closely with federal authorities
than ever before.
But a threat remains!
Despite recommendations from the state's Attorney General and the
Virginia State Crime Commission, Virginia's Governor has yet to ask
federal authorities for a 287 (g) agreement; and ICE may not have the
resources to support such a request. The 287(g) program would allow the
state to enter into an agreement with the federal government so that
state law enforcement officers can assist in the investigation,
apprehension and detention of illegal immigrants. Opponents of 287(g)
cite a supposed ``chilling effect'' on cooperation between immigrant
communities and police, the cost of the program, or the potential for
racial profiling as reasons to reject it.
As I testify here today, I expect to hear many of these arguments.
While I sympathize with those arguments, I am not compelled. I know
about chilling experiences. They happen on the average of twice a month
with Illegal Immigrants in America, transparent criminals in a broken
system that lets them kill or injure honest citizens.
A family should not have to mourn the death of a loved one just
because of an unrelated policy or the political correctness of not
offending or inconveniencing a few people. This prevents us from making
our communities safer, a Constitutional right to all citizens of the
United States.
Newsweek columnist Robert J. Samuelson recently wrote:
``We face a choice between a society where people accept modest
sacrifices for a common good or a more contentious society where a
group selfishly protect their own benefit.''
I believe this to be true.
__________
Ms. Lofgren. Thank you for your testimony.
The audience is reminded not to engage in displays of
enthusiasm for any of the witnesses, either in this panel or
the next.
Now is the time for Members of the Committee to have an
opportunity to question the witnesses. And I will turn first to
the Chairman of the Constitution Subcommittee, Congressman
Nadler.
Mr. Nadler. I thank the Chairwoman.
Let me ask Mr. Mora, you said that one of the two black
SUVs that stopped you and your dad pulled in front of your
truck and the other followed behind. Did you know who was in
those SUVs? Did you know they were police cars? Did you know
who was in the cars?
Mr. Mora. Did I know who was in those vehicles?
Mr. Nadler. Yes.
Mr. Mora. I know they were sheriffs because on the side of
the vehicle it said ``Sheriff.''
Mr. Nadler. Oh, it said ``Sheriff.''
Mr. Mora. Yes.
Mr. Nadler. And when your dad told the deputies he was
going to work at HMI, did the deputies tell him or you what
they were doing there?
Mr. Mora. What was that?
Mr. Nadler. When your father told the deputies that he was
going to work at HMI, the company, did the deputies tell him or
you why they were going to be at HMI?
Mr. Mora. No.
Mr. Nadler. And when they told you and your dad to get out
of the car and they patted you down and handcuffed you, did
they explain why they were doing that?
Mr. Mora. No, they did not.
Mr. Nadler. When you saw the deputy with big guns and ski
masks over their faces at HMI, what did you think was going on?
Mr. Mora. I did not know.
Mr. Nadler. And how long were you and your father held
there?
Mr. Mora. How long? Three, 3 hours.
Mr. Nadler. Three hours. And what is your impression of the
police after what happened to you and your dad that day?
Mr. Mora. What was that again?
Mr. Nadler. What is your impression of the police after
what happened to you and your dad that day? Do you think more
of them, less of them? Do you fear them? Do you respect them?
How has this affected your thoughts about the police in
general?
Mr. Mora. The police in general? Well, look, one thing I
just want them to know is to treat us equally, you know.
Because we are here to work, we are here to work, and we are
not here to do anybody wrong, you know. We are just here
working for our families.
Mr. Nadler. Okay. Thank you.
Mr. Ramirez, in testimony before a different Committee of
this House last month, Frederick County Sheriff Charles Jenkins
claimed that, and I quote from his testimony, ``There has been
absolutely no complaints of profiling or discrimination based
on ethnicity,'' close quote, since Frederick County began
participating in the 287(g) program. Yet your testimony
describes a number of instances where Frederick County
Sheriff's office appears to have stopped, integrated, ticketed,
or arrested Latinos, U.S. citizens, as well as legal and
undocumented immigrants, seemingly based solely on their
appearance.
Why do you think that no formal complaints have been filed
against the Sheriff's office?
Mr. Ramirez. They think we don't report any crime because
we are afraid. We are a target, like I said. And sometimes
people, they report a crime and they are taken away, even the
brother and father----
Mr. Nadler. What do you mean they are taken away?
Mr. Ramirez. They are taken to jail.
Mr. Nadler. For the crime of reporting a crime?
Mr. Ramirez. Yeah, for reporting a crime. They don't go and
target the crime; they come in asking for IDs, green cards, and
humiliating us like we are criminals, like we are the only bad
people in town.
Mr. Nadler. So you are saying that there were no formal
complaints filed against the sheriff's office because of fear?
Mr. Ramirez. Yeah. There is a big fear.
Mr. Nadler. The sheriff also asserts that the program has
not harmed police-immigrant community relations and has not
created fear or distrust of law enforcement. Would you comment
on that statement by the sheriff?
Mr. Ramirez. Excuse me?
Mr. Nadler. The sheriff testified that the 287(g) program,
quote, ``has not harmed police-immigrant community relations
and has not created fear or distrust of law enforcement,''
unquote.
Could you comment on his statement? Is it true? Is it
untrue?
Mr. Ramirez. Of course it has had no affect because there
is no relation to begin with.
Mr. Nadler. It is not true, then.
Mr. Ramirez. It is not true. There is no relation. I
offered my hand many times to work with him. And that is not
the first time I do that with the police. I have worked with
them before.
Mr. Nadler. Now, he also said that any existing fear or
distrust of law enforcement is generally cultural-based, as
most countries where immigrants originate from do have corrupt
governments, corrupt and abusive law enforcement, which is all
they have been exposed to in their lives.
In other words, he is saying that if there is distrust or
fear of law enforcement in Frederick County on the part of
immigrants, it is because the countries they come from have
corrupt police departments; it is not because of the wonderful
sheriff's office in Frederick County.
Would you comment on that?
Mr. Ramirez. You know, when we come to this country, we are
stereotyped. They think we come not from another country, we
come from trash cans. We don't believe in anything. People like
me, we live in the laws from the day we are born. I am not
afraid of laws. I am not afraid of rules. I believe in laws.
And to be afraid of the sheriff, of the police, since 2
years ago has been increasing very badly, because when we call
the police, the problem is not solved.
Ms. Lofgren. I am going to interrupt. The gentleman has
asked unanimous consent for an additional minute and is granted
an additional minute.
Mr. Nadler. Thank you.
So, in other words, your testimony is that it is not
culturally based?
Mr. Ramirez. It is a culture that is creating right now. We
are afraid to call--I changed, even as a citizen, and friends,
residents, people I have known for a long time. We have changed
everything. Our life is different now.
Mr. Nadler. I hear that. But, in other words, you are
saying that when the sheriff says that if there is fear of his
department it is because of what happened abroad or in other
countries, not because of the action of his department, that is
not correct.
Mr. Ramirez. That is not correct.
Mr. Nadler. Okay.
Mr. Ramirez. And I will give you one example, quickly, an
example. I know of friends, they were walking in the street,
and some guy approached them and asked for money. And he said,
``If you don't give me the money, I will call the police and
tell them you are selling drugs.'' And it is not just once,
many times.
Mr. Nadler. Thank you.
I have one more question for you before the time expires.
You testified that, when the police stopped Latinos, they often
ask everyone in the car for passports or other identification
cards, no matter the reason why the car was stopped.
Mr. Ramirez. Yes.
Mr. Nadler. What do they do--now, let me just say, if a car
is stopped for a traffic violation, there is absolutely no
legal justification for asking for any kind of ID or anything
else from anyone other than the driver. The driver you can ask
for license and registration, but have you absolutely no legal
right to ask anybody else for anything.
What happens if the other passengers in the car, not the
driver, do not have, in the judgment of the officer, adequate
ID or whatever?
Mr. Ramirez. They are taken to jail, and they are
processed. And I had a friend who is a citizen, and he was
driving on Waverly Drive around Frederick, of course, and they
stopped him because he was driving very slow. And he was taken
to jail, and he said, I am a citizen. And after almost an hour,
he proved he was citizen. He never got a ticket, he never got a
warning.
Ms. Lofgren. The gentleman's time has expired.
Mr. Nadler. Thank you very much.
Ms. Lofgren. And we do want to recognize the Ranking
Member, Mr. King, for his opportunity to question the
witnesses.
Mr. King. Thank you, Madam Chair.
And I thank all the witnesses for your testimony.
I sit in this Committee now, it is my seventh year, and I
am trying to remember when I felt so uneasy, sitting up here
listening to testimony. And I think I am seeing the embodiment
of a great big problem we have in this country. And the result
of it is the loss of lives, the loss of innocent human lives.
And I have listened to Professor Tranchant's testimony. You
have to know that he is here to tell you today that if we had
enforced local immigration law his daughter would still be
alive. Tessa and Ali would still be alive. And that is true for
hundreds and perhaps thousands of Americans that go about their
lives every day seeking just to make this world a better place.
And you are pressing this Committee, and the message that I
get from you is that we shouldn't enforce immigration law at a
local level because there are some examples of discrimination
that are there, at least that you testify to. And I don't argue
that it never happens.
But I would ask you, can you look at this on balance? Can
you see the difference between the plea that you have to this
Committee and the plea that Mr. Tranchant has to this
Committee? Can you look him in the eye and say, we should have
passed everybody over and your daughter would still be alive
anyway? I don't think you can do that.
And I don't know how to express to you that the comparison
of what looks like an inconvenience to either one of you is
compared to the very sacred life of this man's daughter. And
you are on the same panel.
What do you have to say to Mr. Tranchant, not to me, Mr.
Ramirez?
Mr. Ramirez. You know, I am an immigrant for 21 years here,
I am a citizen, and I never killed nobody. Alcohol is sold to
everybody--legals, non-legals, Irish, Italian, German,
everybody. And I feel bad because I know what it is like to
lose somebody. And I feel bad, too, when a father or a mother
is taken away.
And I understand, and that is the reason I am here, to be
part of the solution. I am not a problem. I am not a problem. I
am here for the solution.
I can see here in his face, in the same way he feels
sorrow, I feel sorrow too. Because we are in the middle of the
things that are going on. We need your help. We need the
Federal--we need the Constitution to lead us.
Immigrants are not new in the United States. This is a
topic for hundreds of years. And what I learned from the United
States, they need the solutions.
Mr. King. Mr. Ramirez----
Mr. Ramirez [continuing]. For one drunk person. I am
inviting you to downtown Frederick----
Mr. King. I appreciate your point, and my clock is ticking,
and so pardon me if I have to interrupt, but there is another
point that needs to come.
Mr. Ramirez. I am not a criminal. Please. I am not a
criminal.
Mr. King. And I think, in your head and in your heart, you
came here to contribute. And I don't disagree with that
sentiment that you have expressed, Mr. Ramirez. Please, believe
me, I do not. I compare the difference between the plea that I
am hearing from you and Mr. Mora and the plea that I am hearing
from Professor Tranchant. And one screams out to me and says
that the foundation of this country is the rule of law. The
very central pillar of American exceptionalism is the rule of
law. And the argument here is that there are some exceptions to
at least allegations that there has been discrimination.
We reject discrimination, all of us on this panel. But yet,
the law enforcement people need to do their job. Especially,
local law enforcement need to cooperate with Federal
immigration law enforcement. And so the message that I am
hearing out of here isn't that we should continue with that and
try to improve it. I am hearing a message that we should
perhaps end this 287(g) program, and I reject that. I am a
solid supporter of the 287(g) program.
And I would like to turn to Professor Tranchant and ask
you, is there a statement that you didn't have an opportunity
to make to this Committee?
Mr. Tranchant. Yes, sir. Thank you.
I am a son of an immigrant. She came from northern Ireland,
and I helped her study for her immigration exam. And my grand-
pere is a Frenchman, and people used to discriminate against me
because of my big nose, because he is French.
But I have to tell you that I don't want undesirable people
in America, personally. I don't want drunks in America. I am
not going to say that, ``Well, everybody gets drunk and people
kill people because they are drunk.'' I will tell you what, if
we have an opportunity not to have them here in this country
and deport them, we should do that. We want desirable people
here. This is America. We didn't want them killing you.
So what this law does, it takes undesirable people and puts
them at the back of the immigration line, which is where they
should be. And I think most people feel that way. We don't like
drunks. And if you are a drunk here in the country, go home. If
you are a murderer, go home.
Mr. King. Thank you, Mr. Tranchant and all of the
witnesses.
And I yield back.
Ms. Lofgren. The gentleman yields back.
I would turn now to the gentlelady from Texas, Ms. Sheila
Jackson Lee, for her opportunity to question the witnesses.
Ms. Jackson Lee. Thank you very much, Madam Chair.
And I am so glad that as I was coming in--and I beg the
indulgence of the witnesses. I just came from a Homeland
Security Committee hearing.
And so I want to say to Professor Tranchant that you are
looking at the person who, in totality, agrees with you, that
we have to do our job.
Mr. Tranchant. Right.
Ms. Jackson Lee. And I want to say to you that I, frankly,
believe that homeland security, immigration issues is a Federal
issue. We have to do a number of things: one, put in place
Federal laws that lay the parameters out. We have to
comprehensively fix the confusion in immigration laws. We have
to let a citizen like yourself know what they are. And then, of
course--let me apologize for not appropriately starting with
the most important remark, which is my sympathy and concern. No
parent could ever fathom what you have gone through.
And you said something very important: We don't need drunks
on the street. I am appalled that this was an offender, whether
it be an undocumented citizen or someone else, that was on the
street more than once after having incurred the ridiculous
action of driving while drunk. I am, just for your own
information, rabidly supportive of cutting Federal funds for
States that don't have stronger drunk-driving laws. That
doesn't bring back the life.
What I would have wanted to have seen is the fact that,
once picked up in the normal process of an offense, that the
Federal officials needed to come and do their job. I want to
put on the record, they needed to do their job. They needed to
be aware of individuals in jail. And you would have had, if we
could just turn the clock back, at least had relief that the
Federal Government was doing its job.
So, please, as I pose questions to Mr. Ramirez, I don't
want you to doubt in any way both the sympathy and the
frustration that I face. I Chair a Subcommittee on Homeland
Security; the Chairwoman is on that Committee. And we need to
ramp it up so that there are offices that can function in
conjunction with jails and incarcerated persons across America.
I think when I go to Mr. Ramirez, if you can listen to my line
of questioning. And I, Mr.----
Mr. Tranchant. Tranchant.
Ms. Jackson Lee. I want to make sure, because it is French
to me. I want to say ``Tranchant.'' Let me just pose a quick
question to you.
287(g) represents sort of a law that throws the burden--and
it came out of frustration--on local government. I don't think
it is perfect, because what it does is it says that individuals
that are not operating under it are sanctuary cities. I come
from the city of Houston. Let me go on record and say, Houston
is not a sanctuary city. We have too much diverse political
perspectives to be a sanctuary city. But we are a big city, so
obviously we cannot rally up every one. We need Federal
support.
Would enhanced resources give you comfort, as well, in the
immigration process through the Federal Government--we call
these folk ICE officers--where they are surveying and working
with the jail, would that give you comfort?
And would it also give you comfort--because you come from
North Carolina. My daughter went to UNC, so I know the influx
of diversity and immigrants in your community. Would it also
help--and I know that you have seen some of them there; they
are there working in various capacities--that we have some laws
that you could understand, that people who need to be deported
were deported and those who were here to work could stay under
some laws that were appropriate? Would that be helpful to you,
in reflection even in this tragedy that you are facing?
Mr. Tranchant. Well, ma'am, I can't--I don't have as broad
a solution base that you have. And the thing about allowing
them to stay and work, I can't make statements to that because
I don't know--you know, I want to split the hairs on that one.
I want to----
Ms. Jackson Lee. You need more facts?
Mr. Tranchant. Yeah. But I tell you that what Homeland
Security is doing with allowing local law enforcement to have
integrated databases from some of the banditos they have on
their lists, so that these law enforcement officers can run an
ID check, a fingerprint, and the guy or woman who has been
going from State to State--and, by the way, we don't border
Mexico in Virginia.
Ms. Jackson Lee. Was it Virginia? I am sorry. I thought it
was North Carolina.
Mr. Tranchant. But they guy who is going from State to
State committing crimes----
Ms. Jackson Lee. And I want to get another question in. I
think your answer is you have one perspective, and----
Mr. Tranchant. Right.
Ms. Jackson Lee [continuing]. Let me try to get this
question in, Madam Chair, if I might, to Mr. Ramirez.
Mr. Ramirez----
Ms. Lofgren. The gentlelady is granted 1 additional minute.
Ms. Jackson Lee. I thank the Chairwoman.
Mr. Ramirez, I got the gist of Mr. Tranchant's point of
view, but my point is, if I can ask this question, you have
suffered civil rights abuse because you are a citizen, and the
confusion of utilizing laws in the hands of local officers, who
don't have a component of sensitivity, means that the
confrontations that you have had have been unnecessary. So it,
again, comes back to the Federal Government; we are not doing
our job.
Give me your suggestion--I recognize the tragedy of your
fellow witness here--on how we solve this. I want what has
happened to you to you to stop.
Mr. Ramirez?
And my apologies to you for those actions against you
inasmuch as you have been innocent.
Mr. Ramirez. The thing I feel when I am stopped by the
police is the stereotypes they have of Latinos, people looking
like me. You know, they see the bad part of us--drinkers,
robbers, rapists, killers. But they don't see the good things.
We work very hard. We have made more rich this country.
I can give you an example in Frederick. For our work, a lot
of people are richer because we work for them. We make their
companies better and faster. I work in safety in construction,
and I can give you many examples. But the point is, we are
human beings. There is no difference from my skin and your
skin, my origin or your origin. We are in pain here together.
And there is humiliation after we offer, after we work, after
we are hard to----
Ms. Lofgren. The gentlelady's time has expired.
Ms. Jackson Lee. I thank you.
We need a fix on this system, and it is broken.
I thank you, and I yield back.
Ms. Lofgren. I recognize the gentleman from Mississippi,
Mr. Harper, for his opportunity to ask questions.
Mr. Harper. Thank you, Madam Chair.
This is, to me, a very--in one regard, you know, we hear
about needing to pass new immigration laws, to maybe consider
repealing certain laws and changing those immigration laws, but
we have not really enforced our existing laws. We should take
steps to enforce the existing laws on the books fully and then
see where we are after that.
I have to say that, while you may have complaints about the
sheriff in Arizona or other locations, you know, as a former
prosecutor, I can tell you that I am encouraged when I see
folks uphold the law.
And, you know, America is a Nation of immigrants. You know,
we have people who come from all over the world here. And those
folks that have come in that want to be in this country and
have an opportunity to live and reach the American dream, more
power to them. And I commend them. And those that come into
this law the proper way and the legal way, that is how it is
supposed to be done.
We cannot, as a Nation, say those who have come into this
country and from the very beginning broken our laws--how do we
say to those who wait years sometimes to come into the country
the legal and proper way that, ``You keep waiting. Those of you
who came in breaking our laws, it is okay to stay.'' So, you
know, amnesty that we discuss or those things that we talk
about is just something that is not going to be acceptable.
This is a matter of national security. We cannot have
people coming into this country that we don't know who they
are. And that is a thing that we have to continue to look at.
Professor Tranchant, our heart goes out to you.
Mr. Tranchant. Thank you.
Mr. Harper. Do you believe that if the laws had been
enforced that your daughter would still be alive?
Mr. Tranchant. Undoubtedly. He wouldn't be there at that
moment. The causality would be unnecessary.
Mr. Harper. Okay.
With that, Madam Chair, I yield back the balance of my time
to Steve.
Ms. Lofgren. The gentleman yields the remainder of his time
to Mr. King.
Mr. King. Thank you, Madam Chair.
To the witnesses, I look at some of the data that comes out
of these counties we are talking about, and a curious thing
comes to mind.
Mr. Mora, as I read your testimony this morning, your
father has been in this country since the 1960's and has had a
green card, I think, since 1976 in your testimony. Has your
father become a citizen yet?
Mr. Mora. Yes.
Mr. King. When was that?
Mr. Mora. I am not sure.
Mr. King. Some time ago, though? That is an omission in
your written testimony. I think it is important that the panel
understand that your father has taken that step to citizenship.
And I congratulate and applaud him for that.
And I would ask, as part of that citizenship that he
studied in order to pass the citizenship test, and this thing
we have talked about, at least Mr. Harper and I, about the rule
of law, I am looking at the data that shows that the Maricopa
County Sheriff's Department had nearly 80 warrants for
individuals at the workplace that day, and, of that, 39 were
arrested. So it would be, I think, evident that your father was
working with illegal immigrants on a daily basis.
Did he ever talk to you about the rule of law and about
immigration law? Can you tell me that--I mean, would you agree
or disagree with me that a citizen has a responsibility to see
that the law is enforced as well as local law enforcement?
Mr. Mora. Yes.
Mr. King. Did he ever say to you that he would be willing
to participate and help out and support local law enforcement
in enforcing immigration law?
Mr. Mora. Can you repeat that for me, please?
Mr. King. Yes. Did you father ever advise you, as a matter
of being a good citizen, that one needed to, as a matter of
citizenship, help cooperate in enforcing immigration law in the
United States?
Mr. Mora. For me, he wanted me to be respectfully to
everybody, or be respectful.
Mr. King. Whether or not they were here legally or
illegally?
Mr. Mora. Yes.
Mr. King. And so I am going to take that that you aren't
saying ``yes'' to that question. So I will ask this another way
then. And you have talked about what I think you have
emphasized as an embarrassment that day in Maricopa County, and
you have named a couple of incidents of embarrassment there.
Could you, for me and for this panel and for especially
Professor Tranchant, can you express to me the difference
between the embarrassment that you endured and the loss of his
daughter? And might, if it had been, say, your sister or
girlfriend or maybe your new child that was a victim of a crime
like this, might you be speaking on the same side of the
argument as Professor Tranchant instead of the side you are on
today?
Mr. Mora. Okay, can you simplify that for me, please?
Mr. King. Yes. If it had been a family member who had been
killed by an illegal who would have otherwise not been in this
country if the law had been enforced, if that had been your
close family member, your sister for example, would you perhaps
change your mind on the reason for your testimony here today
and support the rule of law?
Mr. Mora. No, I would actually want the local police to
actually----
Mr. King. Let them go.
Mr. Mora [continuing]. Enforce. No, enforce it. Be smart
about it and enforce it. And, obviously, they weren't enforcing
it.
And I apologize, you know, I am sorry, sorry for your loss.
But for them to enforce their law, the ones they are
supposed to be following.
Mr. King. You are not telling me that your embarrassment
trumps the daughter's life?
Mr. Mora. No.
Mr. King. Then you understand the priority, and I think you
would agree with Mr. Tranchant.
I thank you, and I yield back.
Ms. Lofgren. The gentleman's time expired.
I would turn now to the gentleman from Illinois, Mr.
Gutierrez, for his opportunity to question the witnesses.
Mr. Gutierrez. Well, first of all, thank you, Madam
Chairwoman and Mr. Nadler.
And I thank the witness for their testimony here today.
I think we are missing the point of the testimony here this
morning. And just so that we have it very clear, no one has
ever stipulated, promoted laws that do not deport drunk people,
that do not deport rapists and murderers.
Now, part of the problem is that, it has been said here by
some of my colleagues on the other side, enforce the law. Let
me just suggest to everybody, this Congress and the Government
of the United States has not shown the political will nor
committed the requisite resources to enforce our immigration
laws. And I hear no one here--no one here--who has come with a
solution of enforcing and putting the requisite resources in
order to enforce the immigration laws of our Nation.
And the only way that you really do that is by having
comprehensive immigration reform. You either sweep millions and
millions of people off the streets of the United States of
America--which no one has ever proposed. So it is always a
little disingenuous to me when people say, ``If we would only
enforce the laws.'' Well, we are here every day, and I haven't
heard the proposal, and I haven't see the political will to do
it.
What I have seen, unfortunately, is the will to target and
to victimize and to scapegoat a community of people. I have
seen that readily here in the Congress of the United States.
And it makes for great political points, but it doesn't resolve
the problem and would not have saved your daughter's life.
Now, under comprehensive immigration reform, we would have
an opportunity to tell people--because here is what happens,
fundamentally: Those drunkards and those rapists and those
murderers do most of their drunkenness, their murdering and
their raping in the very immigrant community in which they
reside. And you want to know who wants to get rid of them? The
very immigrant community that lives there. But they cannot call
the police.
And we are going to be entering in a minute--we have cases
of women who are abused by some of these undocumented drunkards
who abuse these women, and when the police are called, they
deport the victim of the crime and not the perpetrator of the
crime.
So if they live--and they live among us, especially in the
immigrant community--we need to have that relationship with the
police that allows the community to defend itself and to rid
our society of them.
No one here, and I agree with Mr. Tranchant, they should go
home. Better than go home, we should drive them home, we should
ship them home, we should use any resources to make sure that
they are not here.
There are a community of people in this country,
foreigners; not all foreigners come here really as immigrants.
Most people, as probably Mr. Tranchant has already expressed to
us, come here as immigrants to work, to sweat and to toil, to
make their own future better, and by doing so, enriching us
all. And then we have foreigners who come here as terrorists to
bomb our buildings, to come here to do harm. They are
foreigners. I don't think we quite make them immigrants,
because I think that that would be kind of looking pretty badly
on our tradition of immigrants that come here.
So crime and immigration is an old story. The Irish were
the dirty filthy criminal element that was coming to undermine
America. Well, they gave us a President Kennedy.
Mr. Tranchant. They gave me me.
Mr. Gutierrez. Thank you. You know, if it was the turn of
the century, we could read in The New York Times ``only by the
rule of law could we help to control these people''--referring
to the Italians. You know, they were wrong about the Irish,
they were wrong about the Italians, to tarnish them all because
of a few. And they are wrong today to tarnish a whole immigrant
community because of the actions of a few--a few that I wish to
get rid of.
And let me just end, because I don't want to take an extra
minute which has been given to everybody. I mean, the gentleman
from Iowa suggests to us and suggests to Mr. Mora that he
should be checking the immigration status of people.
Let me just tell you, that really is shocking to me. Am I
supposed to check, when I go to church, those who sit in the
pews with me in church and check their immigration status? Am I
supposed to go and shop and check their immigration status?
Every day we walk into hotel rooms across this country, we eat
grapes, we eat fruit, we eat meats that are cut in meatpacking
plants. And we all know who has done that work: undocumented
workers here in this country.
I would ask for 15 additional seconds.
Ms. Lofgren. The gentleman is granted, by unanimous
consent, an additional 15 seconds.
Mr. Gutierrez. We all benefit. And we show a blind eye--a
blind eye, Mr. Tranchant, that I share with you, as a father of
two daughters. Your testimony is to me--I thank you for
bringing your testimony here. But I suggest to you that if we
refer to them simply as ``banditos,'' as you have referred in
your testimony, it does not help to solve the problem. I want
no more daughters like yours killed in our country. I want to
work toward a solution. And I thank you for your testimony.
Ms. Lofgren. The gentleman's time has expired.
I would recognize the gentlelady from California, Ms.
Waters, for her opportunity to question.
Ms. Waters. Thank you very much, Madam Chairwoman. And I am
sorry that I have not been able to be here for the entire
hearing. But I want to come, first of all, to honor the work
that you have done, the hearings you have held, your committed
work to deal with one of the biggest issues in our country, and
your attempt to forge the public policy that is going to be
necessary to recognize that we have to have immigration reform
in a comprehensive way.
Ms. Lofgren. Thank you, madam.
Ms. Waters. And also I want to thank Mr. Gutierrez for the
leadership that he has provided on this issue all over the
country; his courage, his willingness to get on the point on
this issue; to tell the truth, to recognize where the problems
are, and to call upon immigrants to share in the solving of
this problem and exercising certain responsibilities; and to
educate all of us about the part of an immigrant population,
their contributions to our society, and how we cannot solve
this simply by talking about deportation of everybody. That is
not going to happen. We all know that.
And so I want to say to the panel, thank you for being here
today. Thank you for coming here to share your experiences. I
cannot imagine what it is like to come here and talk about the
loss of a child in the way that you are doing today, and
describing what happened to these young girls who were innocent
and simply sitting at a stop light and to have been killed in
that way.
You have my greatest sympathy. And I certainly share in
your sorrow. And I am hopeful that the law works in ways that
no matter whether you are an immigrant or not, that if you have
broken the law, if you have been arrested for drunk driving,
that we do a better job of tracking, punishing, and keeping up
with people who put us all at risk. So thank you.
For others who are here today with professional testimony
based on your knowledge, your experience, your intellect, to
the victims who are here today to talk with us, Mr. Julio Cesar
Mora, about what happened, let me just say this: that many of
us are committed to comprehensive reform. We recognize that
there are a lot of things to be resolved. We have to resolve
the fact that there are many people who have been in this
country, contributed for many years, and that we have to come
up with a way of reconciling the length of time that they have
been here and their being able to get citizenship.
We have to deal with the employers, we have to deal with
the criminals, we have to deal with every aspect of this. And
it is not going to go away as a huge problem until we recognize
that we have to come up with the kind the public policy that
deals with the reality of the presence of immigrants who make
up a significant part of this country, providing services,
providing jobs, and all of that.
So I am just here to say I am committed--understanding all
of the problems, understanding the violation of civil rights,
understanding the criminal elements, understanding the role
that employers play, who are the beneficiaries of the work
without, wanting to engage in a real way in the problem, pay
the real wages and all of that.
And I am going to work, under the leadership of our Chair
and Mr. Gutierrez and others who are sincerely dedicated to
this proposition, that we can work it out to do that. I simply
wanted to come and say that, despite the fact that I have to
run back and forth with some other meetings. Thank you very
much.
Mr. Gutierrez. Will the gentlelady yield?
Ms. Waters. Yes, I will yield.
Mr. Gutierrez. Number one, thank you. And I also want to
thank the Chairwoman for her work on this issue. And just to
add, people die; a lot of people are dying because of our
immigration system, exploited at work, children left behind.
Hate crimes in the United States, just check the FBI's
statistics, hate crimes are rising in the United States against
people of Hispanic origin. And people are being murdered on our
streets simply because of the color of their skin. We want to
end the unfortunate death of your daughter and the unfortunate
deaths of many others.
Ms. Lofgren. We have been joined by the Chair of the
Judiciary Committee. Mr. Conyers, do you wish to question the
panel?
Mr. Conyers. I am not sure which questions I would like to
ask now because, unfortunately, I was pulled out of the
hearing. But I know that I am working with my two friends on
the other side, the gentleman from Mississippi and Steve King,
to try to put not just a human face on this but also we are in
the process of sorting out the law. The truth of the matter is,
we don't have an anti--the second panel is coming up, so we
will have Professor Harris here. We don't have an anti-profile
national statute. We have a lot of indication that everybody is
in agreement that racial profiling per se is an abomination.
I was just talking with Ted Poe earlier, and my ongoing
discussions with the Ranking Member--and I haven't talked with
the gentleman from Mississippi yet, but the relationship
between the government, the Federal Government and local law
enforcement is not as clearly cut as reading the Constitution
or the Federal Criminal Code or the State statutes.
I referenced President Bush's first Inaugural Address,
Attorney General Ashcroft, all have made statements about this.
And so what we are trying to do is make it real and make it
understanding.
I think this is a matter that this hearing, with two
Subcommittees of Judiciary, are putting a face on this. We are
pulling together a record. Of course, there are thousands of
other instances that will not likely go into the Judiciary
Committee's recording of how we handle this, but we do have an
obligation to move this as far forward and to try to commit to
understanding how we separate out the legal questions and just
the plain, ordinary, common decency questions.
And I think I have been told that we have accomplished this
with the first panel. The people looking at this, the people
reading our transcript, all of this is going to be important in
terms of how we finally address this question.
But there is a peripheral problem that occurs, which is
that the FBI, when they pick up somebody, they put them into
this huge database--I don't know if it is the terrorist
watchlist or if it is just the bank of information that
everybody goes in that gets picked up--NCIC. NCIC gets their
hands on a person that sometimes--has this come up with any of
the witnesses?
Ms. Lofgren. I think it is going to be addressed on the
second panel.
Mr. Conyers. But you call the police as a citizen, you end
up getting put in the database, and then your family gets
busted, and then people start getting shipped out as a result
of people working with the police. And this creates a very
serious problem, and we will be looking toward expanding that.
Ms. Lofgren. Thank you, Mr. Chairman.
I would like to take just a minute to ask you, Professor
Weissman, some questions.
Clearly--well, I won't say clearly, but I think there is
pretty unanimous agreement that individuals who have been
convicted of a serious crime and who are not U.S. citizens
should be deported, apprehended and deported, as provided for
in law. Unfortunately, even though we have directed ICE to do
that repeatedly, given them a huge increase in funding to do
that--there is no way the local police can do that, that is a
Federal Government function. And no matter how many times we
tell them to go to States and localities to pick up individuals
who have been convicted of serious offenses after their
sentences have been served, they don't actually perform that
function in a reliable way. So that is something I think that
needs to be stated.
But I think what there is disagreement about is having
noted that we all agree--or I think all of us do agree on
that--whether it is appropriate to round up everybody in sight
because of their race, which it sounds like is happening in
North Carolina.
I was struck by your testimony on page 7 that the majority
of the undocumented immigrants in the 287(g) program were
caught up--I think you said 83 percent of the immigrants
arrested by Gaston County were charged with traffic violations;
and also, talking about checkpoints in front of churches that
were frequented by Latinos because a Mass was in Spanish.
Do you think that is a lawful use or a proper use of
287(g)?
Ms. Weissman. I don't think it is a lawful use. I think
that when we when we talk about 287(g) and upholding the law,
there are some standards. The statute requires that local law
enforcement officers know Federal law. And so some of these
blatant aspects of racial profiling are contrary to Federal
law, our Constitution, case law, State law as well.
So I think not only is it a contravention of the law, but
it actually undermines what the ultimate purpose might have
been about 287(g). And that is to say that we are pulling local
law enforcement resources into a program and really away from
their primary function.
I am concerned that--for example, DUI is something that the
local law enforcement must first and foremost handle. And if
they are now swept into checkpoints in front of churches and
the flea market where families shop on Saturday and traffic
offenses and filling out Federal forms and requesting
detainers, they will not do their job. Their job is local law
enforcement.
I am concerned that the failure to uphold the way this
program should be operated in terms of the four corners of the
contracts--we haven't talked about this today--this program is
supposed to be operated according to a contract with local law
enforcement and Federal agencies, and there has been very
little compliance with that contract. We know that because of
the GAO study that was submitted last month.
So we have a program that has been somewhat derailed, and
it doesn't allow local law enforcement to do their task.
Ms. Lofgren. Let me ask you, for example--not that this has
always happened, but it is by directive supposed to happen.
When ICE, the Federal agency, enters into an enforcement area
and they find parents--they are supposed to determine that
there is somebody to look after minor children before they
remove the parents. And I was struck by your testimony about an
incident in June in Alamance County. Can you describe that?
Ms. Weissman. Yes. There was a vehicle that was pulled
over, a woman and a man and children in the back of the car,
and it was late at night. It was a mother and her children, and
a male passenger who was helping her drive up to Maryland, and
they were going to see the children's father. She was pulled
over. It was determined that she was not documented. Although
she told the law enforcement officer that the male passenger
was not a relative and not suitable to be the caretaker for the
children, the police left the children with this person, who
ultimately left the car, and the children were left on the side
of the road for a number of hours.
Ms. Lofgren. Well, that is something that--I mean,
certainly no one would be for that. But that directly
contradicts what ICE is supposed to do. And it sounds like the
local police either haven't been trained or didn't get the memo
about the protocols. I see--and I don't want to take advantage,
since I am Chairing--that my time has expired. So I am going to
stop these questions. And we do have a second panel. So I will
thank every one of you for being here today, for your
testimony.
I will note that the Committee record is open for 5 days.
We may have additional questions for you, and if we do, we will
send them to you. And if that should occur, we will request
that you respond to the written questions.
And again, thank you, each one of you, very much for your
presence here today.
As you are leaving, I will begin the introduction of our
second panel as they move forward.
First, I am pleased to welcome Professor David Harris.
Professor Harris studies, writes and teaches at the University
of Pittsburgh about police behavior and regulations, law
enforcement, and national security issues in the law. He has
testified before the United States Senate and many State
legislative bodies on profiling and related issues.
In 1996, Professor Harris served as a member of the Civil
Liberties Advisory Board to the White House Commission on
Aviation Safety and Security. Before he began teaching in 1990,
Professor Harris was a public defender in the Washington, DC
area, a litigator at a law firm in Philadelphia, and a law
clerk to Federal Judge Walter K. Stapleton in Wilmington, DE.
Next, I am pleased to introduce Hubert Williams. Mr.
Williams is President of the Police Foundation, a research-
oriented think-tank that provides technical assistance to local
police departments to enhance the quality of public safety
within the context of America's constitutional standards and
democratic values.
Mr. Williams began his law enforcement career as a police
officer in Newark, New Jersey, rising through the ranks to
serve as Director of Police for 11 years. Mr. Williams received
his B.S. From the John Jay College of Criminal Justice, the
City University of New York, and was a Harvard Law School
fellow. He received his juris doctorate from the Rutgers Law
School. Mr. Williams is a member of the New Jersey Bar
Association, and has been admitted to practice before the
Supreme Court of the United States. He is founding president of
the National Organization of Black Law Enforcement Executives,
otherwise known as NOBLE, and serves on the advisory board of
the National Committee on the Right to Counsel and the
Constitution Project.
He previously served on the Congressional Advisory Panel to
Assess Domestic Response Capabilities for Terrorism Involving
Weapons of Mass Destruction, and was a member of the Council on
Foreign Relations Independent Task Force on Civil Liberties and
National Security.
Next, I would like to introduce Police Chief George Gascon.
Police Chief Gascon took lead of the Mesa Police Department in
August of 2006. During Chief Gascon's tenure, Mesa has
experienced substantial crime reductions, increased officer
productivity and greater community participation in policing
matters.
Chief Gascon is a U.S. Army veteran and an experienced
police executive. He retired from the Los Angeles Police
Department as the Assistant Chief Director of Operations. Chief
George Gascon received his bachelor of arts degree in history
from California State University at Long Beach, and his juris
doctorate degree from Western State University College of Law.
Finally, I would like to introduce Professor Kris Kobach.
Professor Kobach served as Attorney General Ashcroft's chief
advisor on immigration law and border security until July of
2003 and has litigated a number of lawsuits in the field of
immigration. He is a senior counsel at the Immigration Reform
Law Institute, a Washington, D.C.-based legal advocacy
organization that represents U.S. citizens in immigration-
related cases across the country. He also served as the Chair
of the Kansas Republican Party from 2007 to 2009.
Professor Kobach teaches constitutional law, immigration
law, American legal history, and legislation at the University
of Missouri-Kansas City School of Law. Professor Kobach
received his bachelor of arts degree with the highest
distinction from Harvard University in 1988 and was awarded the
Marshall Scholarship.
Mr. Kobach, I think it is only fair to inform you that last
night the Committee received a letter from the Southern Poverty
Law Center, as you know, one of the Nation's preeminent civil
rights organizations. Without objection, I ask that the letter
be made a part of the record.*
---------------------------------------------------------------------------
*Note: See also letter from Southern Poverty Law Center to the
Honorable John Conyers, dated April 8, 2009 on page 305 of this
hearing.
---------------------------------------------------------------------------
[The information referred to follows:]
__________
Ms. Lofgren. They have expressed concern that you are
testifying in your capacity as a law professor rather than your
role as legal counsel for the legal arm of the Federation for
American Immigration Reform, and advise us that this is a job
for which you have received at least $125,000 in payment.
They also draw the Committee's attention to a donation from
FAIR to your congressional campaign when you ran, and condemn
FAIR for its ties to the White Nationalist Movement. And they
have asked us not to take your testimony.
We take their concerns seriously, and certainly we do
respect the work that the SPLC has done against racial violence
and police brutality as an inspiration, really, throughout the
years.
Ultimately, however--and I want to note this because it was
an official request--we respect the right of theMinority to
call their own witnesses. And so it is our opinion that the
best response to this request is not to dis-invite you, but to
hear what you have to say. And I just wanted to make clear that
that was the determination that I have made as Chair, that you
have a right to be heard.
Mr. Kobach. May I just respond to that?
Ms. Lofgren. You will have an opportunity to speak. We are
going to have votes in about 40 minutes. All of you will have
your full written statements made a part of our record. And as
with the first panel, we will invite you to testify for 5
minutes. We don't have a heavy hand on the gavel, but when the
red light goes on, we would ask you to please wrap up.
And we will begin first with Professor Harris.
Mr. King. Madam Chair, just a colloquy inquiry, if you
might.
Ms. Lofgren. Certainly.
Mr. King. I am a little off pace here, but I think I know
what I heard. And I would inquire if that same approach would
be used by the Chair if it happened to be a witness that had
any association with MALDEF or LaRaza or any organization that
might be viewed by people on the other side of the political
aisle to be racist organizations.
Ms. Lofgren. The gentleman is asking for an answer to a
speculation which I am not prepared to answer. I would suggest
that we go to the witnesses.
I recognize Professor Harris for his 5 minutes of
testimony.
Mr. King. Thank you, Madam Chair.
TESTIMONY OF DAVID A. HARRIS, PROFESSOR OF LAW, UNIVERSITY OF
PITTSBURGH SCHOOL OF LAW
Mr. Harris. Chairwoman Lofgren, Chairman Nadler, Ranking
Member King, a great pleasure to be here with you today, and
thank you for inviting me to testify.
The use of local police agencies in immigration
enforcement, whether under 287(g) or otherwise, is a profound
mistake. Local police agencies are not adequately trained for
it, shouldn't do it, it is not their job, and it hurts them.
Two things happen when we get local police agencies
involved in immigration enforcement. Number one, crime goes up
because it does damage to the ability of the police department
to work with the communities they need to work with to make the
streets safe.
Number two, some are inevitably, inexorably, pushed into
racial profiling not because they are biased, not because they
are bad people, but because they are untrained, unsupervised,
unprepared, and they simply rely on what is easy to see.
Let me explain the first point. Fifteen years ago, 20 years
ago, we had the first United States police departments using
community policing, and now it is ubiquitous. It has been a big
part of why crime has fallen so dramatically over the last 15
to 20 years. Community policing is, at bottom, about trust. It
is about the sharing of responsibilities between police
agencies and their communities, between the police and the
people they serve, and it is all based on partnership, and
partnership is based on trust.
Now, I am not talking about personal relationships, though
those are important. I am not talking about people's feelings,
though those are important, too. I am talking about the kind of
relationship that allows you, as a member of the community, to
come into the police department and talk to them, to file
complaints when necessary, to pass information to the police
department when there are bad people in the neighborhood,
people up to no good.
To get the police and the community working together is the
goal of community policing, and trust is the foundation of how
that works. When you have trust, when you have a relationship,
information passes back and forth, intelligence passes back and
forth, and you get good, effective policing.
When you have people who are on the local police department
involved in immigration enforcement, that trust is broken. I
think you heard that from the witnesses from the earlier panel.
And that is where the trouble starts. When that trust is
broken, when that trust is destroyed, the ability of the local
police department is greatly affected to produce public safety
because, as police chief after police chief that I have
interviewed and talked to will tell you all over the country,
``we cannot do it ourselves. We know we need the community, we
need their support and help.'' And if people feel afraid to
come forward and talk to the police about who is in their
community, that is a breach of trust and that cuts off their
information. If they feel afraid to come forward and report
crimes they have witnessed, that deprives the police of the
important information that they need in order to assure public
safety. If they feel afraid to report crimes against
themselves, as the domestic violence examples have so sharply
suggested, what happens is the predators remain free on the
street. And the predators prey on that community, but they
don't stay in that community. They victimize everyone, all
Americans. And because of that, crime goes up. And people who
should be in jail, who should be locked up, are on the street
all because people are afraid to come forward.
So that is why the police should not get into this business
if they are on the local level. This is a Federal job.
When we talk about profiling--there has been a lot of
discussion about that today--when you have local police
enforcing immigration laws, immigration law is one of the most
complex areas of the law that there are. It is so complex, it
requires a great deal of expertise and study and years and
years of experience to do it correctly.
When we put our local men and women and our police forces
into the position of enforcing immigration law, we are putting
them into an untenable situation because they don't have the
training, experience, or knowledge necessary to enforce that
law. That isn't fair of us to ask them to do that. And what
happens is that, as human beings, they inevitably fall back on
what they can easily recognize--appearance. And it isn't
because they are biased, it isn't because they are bad people,
it is just because there is no other way to do what they are
being asked to do. And because of that, profiling follows.
And those police officers who we are putting in that
position are going to get sued, they are going to have
community problems. Their ability to enforce the law overall
and to fulfill their core mission, which is to ensure public
safety, is going to be damaged perhaps beyond repair.
Thank you.
Ms. Lofgren. Thank you very much, Professor.
[The information referred to follows:]
Prepared Statement of David A. Harris
I thank Subcommittee Chairs Lofgren and Nadler and Ranking Members
King and Sensenbrenner for convening this important hearing today. The
American people need to know that using state and local police forces
for immigration enforcement raises significant public safety and civil
rights issues that pose a danger to everyone.
We now have a severely dysfunctional immigration system, in which
problems have built up and compounded for years. But putting state and
local police into the position of enforcing immigration law will create
new problems that will endanger the safety of all Americans, and
subject state and local law enforcement agencies and their officers to
possible liability for racial and ethnic profiling. In short, moving
our state and local police into the business of immigration enforcement
risks the gains we have made against crime over the last fifteen years,
and creates significant new perils for the men and women who dedicate
themselves to public safety. This explains why the overwhelming number
of state and local police departments and law enforcement professional
organizations want no part of immigration enforcement.
SECTION 287(G) AND EFFORTS TO PUSH STATE AND LOCAL POLICE TO
ENFORCE IMMIGRATION LAW
In the 1990s, Congress created Section 287(g) of the immigration
law. Section 287(g) authorized the federal government to enter into
voluntary agreements called Memoranda of Agreement (MOAs) with state
and local law enforcement agencies, under which the state and local
police departments (usually small numbers of designated officers from
within the departments) would become partners with federal immigration
enforcement agencies. They would work together on immigration
enforcement; would receive some training; and would participate in
joint operations under federal supervision.
But no police departments decided to participate in the 287(g)
program until early in this decade; even then, only two agencies--state
police in Florida and Alabama--chose to involve small numbers of their
officers in the program. (The number has since grown, but remains
miniscule compared to the 17,000 police departments nationwide, and
includes no police departments from major cities.)
This has frustrated some who advocated for stronger immigration
enforcement. In particular, many Americans have questioned the federal
government's inability to assure the integrity of our borders against
unauthorized crossings. By 2006, an estimated twelve million people had
entered the country illegally, and the federal agencies empowered to
deal with the problem seemed unable or unwilling to do so in any
satisfactory way, and resulted in the introduction of federal
legislation such as the Clear Law Enforcement for Criminal Alien
Removal (CLEAR) Act, H.R. 2671 (108th Cong.), and the Homeland Security
Enhancement Act, S. 1906 (108th Cong.). Both bills aimed to force non-
federal police into the enforcement of immigration law by depriving
those agencies that refused to do so of federal funds designed to
reimburse them for the costs of detaining and housing illegal
immigrants for the federal government. These costs to states, counties,
and municipal governments ran into the millions of dollars, often
because the federal government could not or would not do its duty and
take custody of the individuals apprehended. The threat to these local
governments was real: either step up and begin enforcing immigration
law, or lose the money you need to pay for carrying this federal
burden. Virtually all major police organizations, including the
International Association of Chiefs of Police, the Major Cities Chiefs
Association, opposed this legislation.
These were not the only efforts made to push state and local police
into immigration enforcement. During the Bush Administration, the
Department of Justice began to use the National Crime Information
Center (NCIC) database for this purpose. NCIC constitutes the single
most important information source for police departments and cops on
the street in the U.S. Police in every corner of the country query NCIC
thousands of times a day to determine whether drivers stopped for
traffic enforcement, suspicious persons encountered by officers, or
persons arrested for crimes are wanted in any jurisdiction. The FBI
maintains the NCIC under a strict federal law governing how police
agencies can use it and what kind of information may be put into it.
Only certain data can be entered, in order to keep NCIC free of
inaccurate, untimely, and unnecessary information; all other types of
data are strictly prohibited. In direct violation of these rules, the
Department of Justice put tens of thousands of immigration warrants--
most of which are civil in nature and do not even pertain to crimes--
into NCIC, with the goal of forcing local police to make arrests based
on these warrants.
All of these efforts took place against the backdrop of increased
pressure from advocates of stronger immigration enforcement, who
clothed their efforts in the rhetoric of the war on terror. If millions
of poor people from Mexico and Central America could make it into the
U.S. by simply walking across the border, surely potential terrorists
could do this, too. Never mind the lack of evidence that this had
occurred or might occur at some time in the future; it could happen,
they argued, so policing the border had to become a national security
matter. And state and local police needed to take on the job of
immigration enforcement to keep our country safe from terrorists.
THE RESPONSE OF POLICE DEPARTMENTS: ``NO, THANK YOU''
American police departments and their officers have a long history
of rising to challenges for the country, of responding in times of
emergencies large and small, short and long term, with a willingness to
tackle whatever problems have emerged. Thus it surprises long-time
observers of the criminal justice system to see that (with only a few
exceptions) state and local law enforcement has answered the call to
enforce immigration law with a straightforward refusal: ``no, thank
you.''
For some, it is a matter of the correct use of governmental powers.
Immigration is a federal matter, both under the Constitution and in
every practical sense. Therefore, the federal government has always had
the job of enforcing our numbingly complex immigration laws, and that
must continue. For others, the question comes down to resources. Police
departments have never found themselves more strapped; some governments
have had to lay off officers. They also face a daunting new array of
homeland security-related tasks, at the same time that they find their
ranks depleted by military deployments of officers who are members of
the National Guard. They simply do not have the wherewithal to take on
the huge and complex problem of immigration enforcement.
But by far the most common response to the push to get state and
local police involved in immigration enforcement centers on the core
public safety responsibilities of our police departments. Simply put,
police officers know that getting involved in immigration enforcement
would constitute a huge mistake from the perspective of crime fighting.
It will degrade their ability to prevent crime and catch criminals;
they will find their ability to keep people safe crippled. And for that
reason above all others, they want no part of the effort.
DESTROYS THE ABILITY OF LOCAL POLICE TO ASSURE PUBLIC SAFETY
For the past two decades, American police departments have
virtually all moved toward community policing. While this philosophy of
police work has many facets, among the most important is that police
and the communities they serve must work together to make the streets
safe in our cities and towns. Partnerships, based on trust, put police
and citizens on the same side of the struggle against crime, instead of
solidifying old ``us versus them'' differences. This results in police
receiving valuable information from citizens about who is up to what in
their neighborhoods. And it is this information that is the lifeblood
of successful policing; without it, police do nothing but respond to
crime after it happens, and can do nothing to prevent damage before it
occurs. Thus the relationships between police and the people who live
in our communities are at the heart and of any anti-crime effort.
Without it, police move about only blindly, without guidance from the
people who know what is happening on the ground.
Creating and nurturing these relationships is not easy, and always
takes sustained effort over time, especially in communities in which
there exists a history of mistrust and abuse. But police departments
that have successfully devoted themselves to community policing have
undertaken the task and devoted resources to it because it pays real
dividends in terms of crime reduction.
The task is only more difficult in immigrant communities. In these
areas, police confront cultural differences invisible to the
uninitiated outsider. Along with culture, language barriers can make
even basic communication difficult. What is more, people in immigrant
communities may carry a distrust of police from experiences in their
home countries. Despite all of this, American law enforcement has built
a record of attempting to work through these differences to build
relationships. The police realize that, as in any other community, they
need public support to succeed--whether the public consists of native
born Americans, naturalized immigrants, even illegal immigrants, or a
mix of all three. And, generally speaking, they have worked hard to
create these relationships.
Involvement of state and local police in immigration enforcement
potentially jeopardizes all of this progress, and threatens to cut off
the all-important avenues of communication and information that
community policing uses to create public safety. Put simply, if state
and local police become participants in immigration enforcement, people
in immigrant communities will not trust them. Instead, they will begin
to fear them, and to fear contact with them. They will fear that any
encounter with the police--reporting a crime, telling a police officer
about dangerous persons or events in the community, or even telling an
officer that they themselves have become crime victims--will result in
investigation of them, and will focus on their immigration status. Thus
every police contact becomes a possible occasion for deportation.
Naturally, immigrants whose legal status is questionable will fear
this, and avoid the police.
This fear will spread beyond illegal immigrants. According to the
Pew Hispanic Center, 3.2 million American citizens live in mixed status
households, in which some people have legal status, but others do not.
Even those with legal status will hesitate to become involved with
police if they think it might bring immigration consequences on someone
living in the home--usually, of course, a family member.
The consequences of this are both obvious and disastrous. First,
police will not have all of the information that they need to make the
neighborhood safe, because some number of residents will not
communicate with them out of fear. Second, and perhaps more appalling,
immigrants victimized by predators--robbers, rapists, even potential
killers--will not report crimes against them. This leaves the predators
free to victimize others.
This is why police departments have not, as a rule, embraced the
call to involve themselves in immigration enforcement: it will corrode
their hard-won gains with immigrant communities, and as a consequence
it will damage crime control efforts. According to Gene Voegtlin of the
International Association of Chiefs of Police, ``a key concern is that
state and local enforcement involvement in immigration can have a
chilling effect on the relationship'' police have ``with the immigrant
community in their jurisdiction.'' Cities and States Take On Difficult
Duty of Handling Undocumented Workers, Wall Street Journal, Feb. 2,
2006. This translates directly into less information for the police,
and a lessening of their ability to catch criminals. ``It's a matter of
practical policing,'' says George Gascon, former Assistant Chief of the
Los Angeles Police Department and now Chief of Police in Mesa, Arizona.
``If an undocumented woman is raped and doesn't report it, the suspect
who raped that woman, remember, could be the suspect who rapes someone
else's sister, mother or wife later.'' (Jack Dunphy, Arresting A Crime
Wave, National Review
Online, Jan. 30, 2006 http://article.nationalreview.com/
?q=MDUzZGUyNTgwNTEzYzliNDVkOGVjMjk3NjA0NzM4NzU=).
RACIAL AND ETHNIC PROFILING ALMOST CERTAINLY FOLLOWS
Inserting local police into immigration enforcement represents a
serious mistake for another reason: it will force our police officers
into an untenable position by giving them an assignment which most
cannot carry out without relying on racial or ethnic appearance. This
will lead them into profiling, and will subject them and their
departments to legal liability.
Immigration law ranks among the most complex bodies of rules,
statutes, regulations and court cases that this country has. One court
memorably noted the ``striking resemblance between (immigration law)
and King Minos's labyrinth in ancient Crete, and said that immigration
law is among ``examples we have cited of Congress's ingenuity in
passing statutes certain to accelerate the aging process of judges.''
Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977). One might liken the extreme
complexity of U.S. immigration law to the tax code--except that the tax
code is easy to understand and changes less often by comparison. For
this reason if no other, the task of immigration enforcement demands
high specialized knowledge, training, and experience. Thus the
importance of having expert immigration officers in agencies like
Immigration and Customs Enforcement makes sense.
In contrast, state and local police get no training in the
intricacies of immigration law during their training. (Even those
officers who are among the few in the U.S. who get training in
immigration law under Section 287(g) MOAs receive only five weeks of
training--not long enough to thoroughly grasp the rules.) And no
officer can pick up crucial subtleties--of what makes specialized
immigration documents genuine or fraudulent, of understanding when an
individual allowed into this country legally may or may not have fallen
out of status, or of knowing whether a work permit has or has not
expired--simply from spending time on the street.
Thus when state and local officers become involved in immigration
enforcement, they operate without vital knowledge that usually enables
police to make intelligent distinctions on the street between law
abiding persons and possible criminals. This inevitably results in the
use of substitute clues: racial or ethnic appearance, inability to
speak English, or the presence of an accent. All of these, of course,
constitute racial and ethnic markers. Relying on race or ethnicity this
way may not be the intent of the officer in any way, but because they
do not have access to other clues or intelligence, since they do not
have the requisite training and direct immigration experience, they
inevitably fall back on what is easily perceivable: ethnic appearance
or accent.
Note that the impact of this activity falls not just on persons
present illegally in this country, but on anyone who looks or sounds as
if they might belong to the same ethnic group. And the more people in
any particular area who share that ethnic heritage, the more American
citizens or legally present nationals will receive this treatment: they
will be treated like people who have to prove they have a right to be
present, perhaps in the country of their birth. Unfortunately, this
will happen most frequently in the American southwest, where the
population of American citizens with Mexican or Central American
appearance will be highest.
Enforcing the law based on race, ethnic appearance, or national
origin violates the Equal Protection Clause of the Constitution, and
can create legal liability for the departments and the officers
involved. Legal action might come from the individuals affected by
these practices, either singly or as part of a class of persons, or
even from the Department of Justice, which has authority to bring suit
against law enforcement agencies that engage in ``patterns or
practices'' of violations of the constitutional rights of persons,
under 42 U.S.C. Section 14141. Thus our police are put in an untenable
position. If we push them into enforcing a complex body of law with
little or no training, we put them into a position in which grave
mistakes are nearly inevitable--mistakes which may cost them and their
departments dearly.
A CASE STUDY: MARICOPA COUNTY, ARIZONA
Many Americans have become familiar with ``Sheriff Joe'' Arpaio of
Maricopa County, Arizona. He has long embraced his reputation as
``America's toughest sheriff,'' and during the past year Arpaio has
used his authority to undertake crackdowns on suspected illegal
immigrants. This has included raids of various kinds, as well as the
use of traffic enforcement as a pretext to investigate immigration
status. Arpaio has frequently clashed with other local officials,
including the heads of other law enforcement agencies in Maricopa
County; he has staged his immigration enforcement actions in their
jurisdictions unilaterally, with neither their permission nor
participation, because his own jurisdiction is county wide. This has
caused considerable frustration and consternation, but Arpaio has
continued these actions anyway.
Late in 2008, the conservative Goldwater Institute, located in
Arizona, released an independent study of Sheriff Arpaio's immigration
enforcement actions and the impact these actions have had on not just
immigration but public safety in general. The report, entitled
``Mission Unaccomplished,'' (which can be found at in its entirety at
http://www.goldwaterinstitute.org/Common/Img/
Mission%20Unaccomplished.pdf) contained several key findings.
Rates of violent crime in Maricopa County and the
City of Phoenix increased during Arpaio's immigration
enforcement initiative.
Response times to 911 calls to the Sheriff's
Department increased.
The immigration crackdown had resulted in the
diversion of significant resources away from the mission of
fighting crime and acting as primary first responders in
various emergency situations.
There had been little or no coordination with other
police agencies during the Sheriff's enforcement actions,
resulting confusion among departments as well as anger and
resentment.
The Sheriff's efforts had been utterly ineffective as
immigration enforcement mechanisms.
These efforts had led directly to law suits against
the Sheriff's department, specifically for allegedly illegal
and unconstitutional conduct during the actions, including
profiling.
And less than a month ago, Sheriff Arpaio's actions earned his
department a dubious distinction. In the first action of its kind for
the new Administration, the Department of Justice announced a formal
investigation of the Maricopa County Sheriff's Department under 42
U.S.C. Section 14141, for a ``pattern or practice'' of constitutional
violations.
CONCLUSION
For public safety and civil rights, the implications of immigration
enforcement by state and local police departments could not be clearer,
or more negative. Immigration enforcement by these non-federal law
enforcement agencies will lead to a decrease in public safety and an
increase in crime, because vital relationships between police and the
communities they serve will break down, corroding under the fear
generated by immigration enforcement. And going in this direction
almost guarantees that police, no matter how well intentioned, will
fall back into identifying suspects by racial or ethnic appearance--
racial profiling by any other name. By and large, our state and local
police do not want to do this; they want no part of this doomed effort,
and rightfully so. We must do everything in our power to support them
and their desire to do what it takes to make us safe and to avoid the
barriers immigration duties would put in their way.
__________
Ms. Lofgren. Mr. Williams.
TESTIMONY OF HUBERT WILLIAMS,
PRESIDENT, POLICE FOUNDATION
Mr. Williams. Chairwoman Lofgren, Mr. King, distinguished
Members of the Committee, thank you very much for providing me
with an opportunity to speak here today on behalf of the Police
Foundation on the issue of immigration enforcement and State
and local police roles with respect to that.
Interestingly enough, the Police Foundation over the past
year has been actively involved with local law enforcement
officials. We have held focus groups in cities with high
immigration population, amongst police chiefs, immigrants
themselves, scholars, and elected political officials. The
objective of the Police Foundation in doing this was to gain
insight and perspective at the ground level on this problem.
As a result of that work, the Police Foundation held a
national conference here in Washington, D.C. Last year.
Approximately 100 police chiefs were in attendance at that
conference, and many representatives of the immigrant community
came to that conference. We will be issuing a report within the
next 2 to 3 weeks on the work that we have done in the
conference.
I want to say to you today that we need to be assured that
the police leaders in America have some voice in the
establishment of national policy with respect to immigration
enforcement.
The title of our conference was ``The Role of Local Police:
Striking a Balance Between Civil Liberties and Immigration
Enforcement.'' We have seen through the years that people have
argued their point of view by taking a particular piece of
evidence and bringing it to the floor, but excluding and
eliminating perhaps the greater evidence that would provide
some insight and perspective as to the nature of this problem.
If you look back to 1980, and you go from a period of 1980
to 2006, you will find out that we had one of the largest
increases in incarceration in our prison system ever. In 1980
we had 500,000 people in the prison system. By the year 2006,
we had 2.2 million people in the prison system. You will find,
when you start to look at the statistics, that the immigrant
population, when compared to the population of Americans born
here, the crime rate was five times lower.
I don't believe that we can characterize the entire
immigrant community by looking at particular incidents in which
immigrants have abused their place here, in which they have
committed heinous crimes.
I remember the Mafia and Cosa Nostra, which plagued the
Italian community for decades. The criminal activity of this
gang element caused some people to characterize all Italians as
criminals. The Irish and other ethnic groups had similar
problems in decades gone by. And people who characterize an
entire community by the activities of a few do a disservice to
all of us. We ought not in this United States Congress allow
ourselves to be pulled into that direction, but rather we
should look at the immigration enforcement issue more
comprehensively by carefully examining the roles and
responsibilities of the parties of interest.
Let me finally say this: The big challenge for local police
is to balance the interests involved with respect to their
responsibilities under the police powers of the State, and
their responsibilities to ensure civil liberties established
under the Constitution, with this business of enforcement of
immigration laws. It is very complicated, very difficult, and
police chiefs have made that clear in our conference.
I would like to read to you, if I may, some of the
highlights of their recommendations.
Number one, the cost of participating in the U.S.
Immigration and Customs Enforcement's 287(g) program outweighs
its benefits.
Police officers should be prohibited from arresting and
detaining persons to solely investigate immigration status in
the absence of probable cause of an independent State law
criminal violation.
If a local agency, nevertheless, enters into the 287(g)
program, its participation should be focused on serious
criminal offenders and should be limited to verifying the
immigration status of criminal detainees as part of the 287(g)
jail enforcement program.
Local and State authorities participating in immigration
enforcement activities should develop policies and procedures
for monitoring racial profiling and abuse of authority.
Ms. Lofgren. Mr. Williams, could you wrap up? The only
reason why I am interrupting is that we do have this as part of
our written record.
Mr. Williams. Precisely. Let me just complete this last
point and then I will close up.
Ms. Lofgren. Thank you so much.
Mr. Williams. In order to preserve the trust that police
agencies have built over the years by aggressively engaging in
community-oriented policing activities, local law enforcement
agencies should involve representatives of affected communities
in the development of local immigration policies.
The Police Foundation has worked for approximately 40 years
to improve the capacity of police to ensure public safety and
to perform their duties effectively. And we believe that this
issue of immigration enforcement is something that really needs
to be looked at more carefully and in a more balanced way.
Ms. Lofgren. Thank you very much for your testimony and for
your service to our country.
[The prepared statement of Mr. Williams follows:]
Prepared Statement of Hubert Williams
Mr. Chairman, Madam Chairman and distinguished committee members.
Thank you for this opportunity to present my testimony on state and
local law enforcement of federal immigration laws.
My name is Hubert Williams. My law enforcement career began in the
Newark, New Jersey Police Department more than three decades ago and I
served as its Director of Police for eleven years. I was founding
president of the National Organization of Black Law Enforcement
Executives and am a lifetime member of the International Association of
Chiefs of Police.
I am currently president of the Police Foundation, a national,
nonpartisan, nonprofit organization established in 1970 to improve
American policing. Motivating all of the foundation's efforts is the
goal of efficient, effective, humane policing that operates within the
framework of America's constitutional standards and democratic values.
Over the past year, the Police Foundation conducted a national
project entitled, The Role of Local Police: Striking a Balance Between
Immigration Enforcement and Civil Liberties, that examined the
implications of state and local law enforcement of federal immigration
laws. A main goal of the project was to provide local law enforcement
with a venue to debate and disseminate their perspectives about their
role in immigration enforcement so that they may have an influence in
the national policy debate. The project brought together police
executives, policy makers, elected officials, scholars, and community
representatives in a series of focus groups across the country and at a
national conference here in Washington. The project included reports on
the rights of undocumented immigrants and the legal framework for the
enforcement of immigration laws, demographic research, immigration and
criminality, evaluation of federal efforts to collaborate with local
police on immigration enforcement (specifically, the 287(g) program), a
national survey of local police immigration policies, the experience of
undocumented youth, and a survey of law enforcement executives
attending the conference about their views on local immigration
enforcement issues. The final report of this project will be published
in the next few weeks.
My testimony here today will focus on our findings and
recommendations regarding the role of local law enforcement in
enforcing federal immigration laws.
Traditionally, the prevailing view was that the responsibility for
enforcing federal immigration laws was solely in the purview of the
federal government. In 1996, however, Congress passed legislation
expanding the role of local law enforcement in federal immigration
enforcement. The most well-known program is the U.S. Immigration and
Customs Enforcement's (ICE) 287(g) program, which authorizes federal
officials to enter into written agreements with state and local law
enforcement agencies to carry out the functions of immigration
officers, including investigation, apprehension, and detention.
The trend toward greater involvement of state and local law
enforcement in federal immigration enforcement gained significant
momentum after the terrorist attacks of 9/11, through pressure placed
on them by their elected leaders, their communities, and the media.
To-date, only a fraction of a percentage of police and sheriffs'
departments has opted to participate in the 287(g) program. There are
good reasons for this. Police executives have felt torn between a
desire to be helpful and cooperative with federal immigration
authorities and a concern that their participation in immigration
enforcement efforts will undo the gains they have achieved through
community oriented policing practices, which are directed at gaining
the trust and cooperation of their communities, including immigrant
communities.
The reluctance of local police to enforce federal immigration law
grows out of the difficulty of balancing federal and local interests in
ways that do not diminish the ability of the police to maintain their
core mission of maintaining public safety, which depends heavily on
public trust. In communities where people fear the police, very little
information is shared with officers, undermining the police capacity
for crime control and quality service delivery. As a result, these
areas become breeding grounds for drug trafficking, human smuggling,
terrorist activity, and other serious crimes. As a police chief in one
of our focus groups asked, ``How do you police a community that will
not talk to you?''
Law enforcement leaders are also concerned about the impact of
local law enforcement of immigration laws on already strained state and
local resources, the high possibility of error given the complexity of
immigration law, a possible increase in police misconduct, the
possibility of racial profiling and other civil lawsuits, and increased
victimization and exploitation of immigrants.
The following recommendations and policy positions were widely held
among law enforcement executives participating in our project.
The costs of participating in the U.S. Immigration
and Customs Enforcement's (ICE) 287(g) program outweigh the
benefits.
Police officers should be prohibited from arresting
and detaining persons to solely investigate immigration status
in the absence of probable cause of an independent state law
criminal violation.
If a local agency nevertheless enters the 287(g)
program, its participation should be focused on serious
criminal offenders and should be limited to verifying the
immigration status of criminal detainees as part of the 287(g)
Jail Enforcement Officer program.
Local and state authorities participating in federal
immigration enforcement activities should develop policies and
procedures for monitoring racial profiling and abuse of
authority.
In order to preserve the trust that police agencies
have built over the years by aggressively engaging in community
oriented policing activities, local law enforcement agencies
should involve representatives of affected communities in the
development of local immigration policies.
There is a need for empirical research on ICE's
287(g) program and other methods of police collaboration with
federal immigration authorities so that we have more objective
data by which to better understand the way in which these
programs are carried out in the field and their impact on
public safety and civil liberties.
Local law enforcement agencies should employ
community-policing and problem-solving tactics to improve
relations with immigrant communities and resolve tension caused
by expanding immigration.
The federal government must enact comprehensive
border security and immigration reforms, because the federal
government's failure on both issues has had serious
consequences in cities and towns throughout the country.
Local police chiefs recognize that mutually cooperative and
supportive relationships among law enforcement authorities strengthen
the capacity of government at all levels to ensure that our communities
and our nation remain safe and secure. But when local police execute
the powers of immigration enforcement officers--as is the case when
they check for green cards at roadblocks, or stop people for motor
vehicle violations and request documentation or information associated
with immigration status--they execute an immigration enforcement
function in contacts with the general public. As a result, they assume
all of the attendant risks and consequences associated with such
activities. These risks are diminished considerably when the exercise
of police authority does not involve contacts with the general public,
such as would be the case when officers are processing prisoners in
connection with DHS to determine whether there are any outstanding
warrants or holds against those individuals, or when transferring
prisoners with warrants or holds into the custody of DHS.
The effectiveness of local police is heavily dependent upon the
nature of the relationship they have with the general public and the
degree to which the police and community are able to work
collaboratively to resolve crime problems. Local police must serve and
protect all residents regardless of their immigration status, enforce
the criminal laws of their state, and serve and defend the Constitution
of the United States. Local law enforcement agencies that opt to
enforce federal immigration law should do so in a manner that does not
erode their relationship with immigrant communities or subordinate
municipal interests to those of the federal government. Local law
enforcement must be careful to strike a balance between immigration
concerns, civil liberties, and maintaining public safety.
Thank you and I will be pleased to answer any questions.
__________
Ms. Lofgren. Police Chief Gascon.
TESTIMONY OF GEORGE GASCON, CHIEF,
MESA POLICE DEPARTMENT, MESA, AZ
Chief Gascon. Madam Chairman, Subcommittee Members, I am
pleased to be here today to discuss the impact that the 287(g)
program is having on local law enforcement.
The application of the 287(g) by local police has created a
variety of challenges for public safety. Increased political
pressure on local law enforcement to reduce undocumented
immigration, coupled with Federal deputation of local police to
enforce Federal immigration statutes is jeopardizing sound and
well-established policing practices. It is imperative that the
Federal Government act to remedy the situation.
First, we need clear guidelines that provide police with
the tools necessary to deal effectively with serious criminal
activity committed by removable undocumented immigrants.
Second, we need to ensure that any federally sponsored
program for this purpose contains clearly stated constitutional
protections to ensure communities and individuals they are not
being racially profiled.
Finally, it needs to ensure that some community policing
practices are encouraged. To do so, positive and respectful
public engagement and partnerships must be embedded into any
federally supported process aimed at addressing serious
criminality by undocumented immigrants through the use of local
police.
To be sure, providing local and State police with the tools
necessary to address serious criminal behavior by noncitizens
here, without authority, is a priority. Our police officers
need the tools and support necessary to do their jobs safely.
To that end, fast access to relevant information concerning
wanted criminal aliens must be made available to police field
personnel so they can protect themselves and our communities.
Currently, that level of information is not readily available
in the field for police personnel regardless of their 287(g)
status.
At the same time, the constitutional concerns created by
the current state of affairs should be troubling to all of us.
The impact on local law enforcement in this politically charged
environment can be devastating. In some cases, it is setting
the police profession back to the 1950's and 1960's, when
police officers were sometimes viewed in minority communities
as the enemy.
According to Mr. Stana, Director of Homeland Security and
Justice at the Government Accountability Office, the main
objective of the 287(g) program is to enhance the safety and
security of communities by addressing serious criminal activity
committed by removable aliens.
Unfortunately, in some cases enforcement decisions are
being based on politics instead of professional public safety
concerns, and the goal of dealing with serious criminal
activity has been replaced by a numbers game. Often these
poorly conceived and politically motivated enforcement efforts
are placing officers in harm's way, leading to accusations of
police misconduct.
The impact of the 287(g) program in some predominantly
Hispanic communities has been equally problematic. Often,
allegations of race-based enforcement practices are driving a
wedge between the police and the impacted communities.
Community policing efforts are being derailed when
immigrants who fear that the police will help to deport them
rely less on the local authorities and, instead, give thugs
control over their neighborhoods.
Community policing requires effective partnership between
the police and the various community services. At the local
level, sustainable public safety strategies require active
community participation and problem solving efforts. For this
level of community engagement to flourish, the public must
trust the police. It is nearly impossible to gain the required
trust to make community policing a reality in places where the
community fears the police will help deport them, or deport a
neighbor, a friend, or a relative.
In conclusion, American police officers deserve thoughtful
Federal leadership so that we can continue doing our best to
provide our country with the security that defines a civilized
society.
In the case of the 287(g) program, any future participation
should be predicated on clearly stated guidelines that, number
one, ensure that all field officers of the concerned agency
have immediate access to information regarding noncitizens who
are charged with or convicted of serious criminal conduct.
Number two, strict constitutional requirements are placed
on any participating agency.
And thirdly, engagement strategies by the impacted
community in the form of participation and problem-solving
partnerships must be required to partake in the program.
With that, Madam Chairman, I am open for any questions.
Ms. Lofgren. Thank you very much, Chief.
[The prepared statement of Chief Gascon follows:]
Prepared Statement of George Gascon
The application of 8 USC 1357(g) (hereinafter 287(g)), by local
police has created a variety of challenges for public safety. Increased
political pressure on local law enforcement to reduce undocumented
immigration coupled with the Federal deputation of local police to
enforce federal immigration statutes is jeopardizing sound and well
established policing practices.
It is imperative that federal government act to remedy this
situation. First, we need clear guidelines that provide police with the
tools necessary to deal effectively with serious criminal activity
committed by removable undocumented immigrants. Second, we need to
ensure that any federally sponsored program for this purpose contains
clearly stated constitutional protections to ensure communities and
individuals are not being racially profiled. Finally, it needs to
ensure that sound community policing practices are encouraged. To do
so, positive and respectful public engagement and partnerships must be
embedded into any federally supported process aimed at addressing
serious criminality by undocumented immigrants through the use of local
police.
To be sure, providing local and state police with the tools
necessary to address serious criminal behavior by non-citizens here
without authority is a priority. Our police officers need the tools and
support necessary to do their job safely. To that end, fast access to
relevant information concerning wanted criminal aliens must be made
available to police field personnel so that they can protect themselves
and our communities. Currently, that level of information is not
readily available in the field for police personnel regardless of their
287(g) status.
At the same time, the constitutional concerns created by the
current state of affairs should be troubling to all of us. The impact
on local law enforcement in this politically charged environment can be
devastating. In some cases it is setting the police profession back to
the 1950s and 60s, when police officers were some times viewed in
minority communities as the enemy.
According to Richard Stana, Director of Homeland Security and
Justice at the Governmental Accountability Office,\1\ the main
objective of ``the 287(g) program is to enhance the safety and security
of communities by addressing serious criminal activity committed by
removable aliens''. Unfortunately, in some cases enforcement decisions
are being based on politics instead of professional public safety
concerns, and the goal of dealing with serious criminal activities has
been replaced by a numbers game. Often these poorly conceived and
politically motivated enforcement efforts are placing officers in harms
way leading to accusations of police misconduct.
---------------------------------------------------------------------------
\1\ Testimony Before the Committee on Homeland Security, House of
Representatives, ``Immigration Enforcement: Controls over Program
Authorizing State and Local Enforcement of Federal Immigration Laws
Should Be Strengthened'' (March 9, 2009).
---------------------------------------------------------------------------
The impact of the 287(g) program in some predominantly Hispanic
communities has been equally problematic. Often allegations of race-
based enforcement practices are driving a wedge between the police and
the impacted communities. Community policing efforts are being derailed
where immigrants who fear that the police will help to deport them rely
less on the local authorities and instead give thugs control of their
neighborhoods.
Community policing requires effective partnerships between the
police and the various communities served. At the local level,
sustainable public safety strategies require active community
participation in problem solving efforts. For this level of community
engagement to flourish the public must trust the police. It is nearly
impossible to gain the required trust to make community policing a
reality in places where the community fears the police will help deport
them, or deport a neighbor, friend or relative.
In conclusion, America's police officers deserve thoughtful federal
leadership so that we can continue doing our best to provide our
country with the security that defines a civilized society. In the case
of the 287(g) program, any future participation should be predicated on
clearly stated guidelines that ensure (1) all field officers of the
concerned agency have immediate access to information regarding non
citizens who are charged with or convicted of serious criminal conduct;
(2) strict constitutional requirements are placed on any participating
agency; and (3) engagement strategies by the impacted community in the
form of participation and problem solving partnerships must be required
to part take in the program.
__________
Ms. Lofgren. And finally, we turn to you, Professor Kobach.
TESTIMONY OF KRIS KOBACH, PROFESSOR OF LAW, UNIVERSITY OF
MISSOURI-KANSAS CITY SCHOOL OF LAW
Mr. Kobach. Thank you, Madam Chairman, and Members of the
Committee, for discussing this important topic today.
I was involved as counsel to the U.S. Attorney General in
the first two implementations of section 287(g) in 2002 and
2003, respectively, in the jurisdictions of Florida and
Alabama. Both of those implementations were at the State level,
and I would be happy to speak about them in response to your
questions.
The Florida Memorandum of Agreement under 287(g) became
effective in July 2002; the Alabama was in September of 2003.
The Florida one was the first, of course. It was an immense
success. Within the first year of its operation in Florida,
specially trained officers had arrested 165 individuals under
287(g) authority. They since broadened their authority. And
they also made a huge arrest in a fraudulent document
production ring in Naples, Florida.
At the time of this hearing, there are now 67
jurisdictions--State, county and local--across the United
States that have 287(g) authority. They compromise a group of
951 State and local law enforcement officers who, in their
part-time capacity, in the course of their normal duties, will
assist the Federal Government in some enforcement arrests.
There are another 42 State and local agencies across the
country that are waiting to get involved in the 287(g) program.
So it is interesting; I hear the allegations that the
program is so costly, but how is it, then, that 42 agencies are
lining up outside the door waiting to get on board, but the
agency simply isn't able to turn out the agreements fast
enough?
Now, in just 25 of the 42 jurisdictions that do have 287(g)
authority, there have been, in 1 year alone, fiscal year 2008,
43,000 immigration arrests. And virtually all of those led to
either a notice to appear, which triggers an immigration court
proceeding, or the individual is granted voluntary departure.
So it has been a very effective program. It is unlikely that in
the absence of the 287(g) program, any of those 43,000 arrests
would have occurred.
Now, by the way, let's put these numbers in perspective.
ICE has a total of 5,600 special agents attempting to cover the
entire country in attempting to find some 12 million illegal
aliens that is estimated. The New York Police Department has
approximately 37,000 police officers, seven times as many, or
six times as many police officers. It is simply ludicrous to
argue that ICE has all of the staffing and that we can simply
push the responsibility entirely upon a small agency of 5,600
and not allow the help voluntarily provided by the real eyes
and ears of American law enforcement, and that is our State and
local police.
It would radically reduce and weaken the enforcement of
immigration law for this Committee or any Committee to attempt
to scale back the 287(g) program precisely at the time when
over 12.5 million Americans are out of work and are competing
for jobs with people who are unlawfully present in the United
States and attempting to work in those same jobs.
Now, I want to also address a myth that has arisen
concerning section 287(g)--it has already been mentioned by
other members of this panel. The myth is perpetuated by
observers unfamiliar with the history of the program who say
that the program's only purpose is to allow for the arrests of
so-called serious criminals, those who have committed higher
level felonies in addition to their immigration violations.
That has never been part of the program. And when the
Department of Justice first implemented the program in 2002, we
looked at the words of Congress. The exact text of section
287(g) of the Immigration Nationality Act contains no
definition, no limitation as to what the purposes of the
program are.
Indeed, we looked at the statutory language--or I have
looked at the statutory language and the Committee language.
The Senate Judiciary Committee said simply this, ``The program
authorizes the Attorney General to enter into written
agreements with a State or any political subdivision of a State
to permit specially trained officers to arrest and detain
aliens.'' Nothing more is said.
Now, the Department of Justice, as I say, began
implementing this program, recognizing that it is not a one-
size-fits-all program, but that it meets the individual law
enforcement needs of each jurisdiction. And there are at least
six distinct purposes of section 287(g) which are detailed in
my written testimony.
The first is addressing terrorism-related concerns, which
is Florida's primary concern.
The second is dealing with compensating for a lack of
Federal enforcement agency resources. At the time, Alabama had
only three INS agents attempting to cover the entire State.
The third purpose is removing convicted aliens who are in
institutions right now.
The fourth purpose is looking at high-risk criminal
populations of aliens, such as gang members.
The fifth purpose is generally restoring the rule of law in
a State or jurisdiction that has seen rampant illegal
immigration, such as Arizona.
And the sixth purpose is protecting unemployed U.S.
citizens from competition with illegal labor. All of those
purposes are satisfied by the 287(g) program.
I want to just briefly mention a few of those in the
context of the programs that I was personally involved in
implementing. In Florida, there was a particular concern that
several of the 9/11 attackers had entered through Florida
airports. Indeed, you may be familiar with Mohamed Al Khatani,
the 20th hijacker. He was stopped at the Orlando International
Airport and detained by a vigilant INS officer and stopped
before entering.
But the point is that many of the illegal aliens had
operated, lived in, or entered through Florida. Florida was,
therefore, particularly concerned about it. And their 287(g)
agreement was designed to address that need.
Alabama's need was not limited to individuals who were
convicted of serious rimes, but rather the fact that you had an
entire State covered by only three INS agents. They simply
wanted to put forward their own resources and say we would like
to help, we would like to be your eyes and ears.
If you look at other States, such as, for example, Arizona,
I think you see a real problem there. Because of the rampant
illegal immigration in that State, you saw a massive fiscal
burden on the State. And they decided that they would put forth
some of their own resources to deal with the problem. It is
estimated that the cost of illegal immigration, in terms of
State public benefits and local public benefits in Arizona is
$1.3 billion a year. And that is why you saw things like
counties, such as Maricopa County, and five other jurisdictions
saying, well, we would like to help. And at the State level,
they are the first State, they are one of two States that now
require E-Verify within that State. So they have done things at
the State level to help the Federal Government, and it is
producing results.
There are massive numbers of self-deportations, people
leaving the country voluntarily on their own without any
expenditure of Federal dollars out of Arizona. That has been
documented, and I would be happy to talk about it. But the
point is that 287(g) is working, working exceedingly well, and
it would be ill-conceived for this Committee to scale it back.
Ms. Lofgren. Thank you very much.
[The prepared statement of Mr. Kobach follows:]
Prepared Statement of Kris W. Kobach
__________
Ms. Lofgren. And we will go now to questions from the
Committee. I would like to offer an opportunity to the Ranking
Member to begin.
Mr. King. Thank you, Madam Chairman. I would temporarily
defer that to my deputy Ranking Member, Mr. Harper.
Mr. Harper. Professor Kobach, before we get going on some
questions, I know there were certain allegations made against
you before you had an opportunity to give your intro. Would you
care to address those for a moment?
Mr. Kobach. Yes, I would. Thank you. I am not receiving any
money for this testimony. This is in my personal capacity,
although my primary qualification is as a professor of
constitutional law and immigration law and as a former
Department of Justice employee.
When the slanderous letter from the SPLC was read into the
record mentioning these slanders instead of the rest of my
C.V., what was left out by what was put in the record is the
fact that my law degree is from Yale, my doctorate is from
Oxford. And the cases that have been brought that I have
litigated on behalf of U.S. Citizens have been victorious in
Federal courts across the country, including in the California
Court of Appeals.
And I guess the point is that when false accusations from a
spurious organization are read into the record of an
institution as hallowed as this one, I think it does a
disservice to the institution. And I am not saying that the
Chairwoman made a decision of her own to do this, but I just
think that it is horrible because it hurts me to be associated
with any beliefs that are racist in nature, and it hurts my
family to see me associated with such beliefs.
I think that such activities of organizations like that are
reprehensible and should be prosecuted to the fullest extent of
the law, if there are such race-based activities occurring. But
I would never associate with them, and I just think it is
horrible that a smear like that can be read into the
Congressional Record.
Mr. Harper. Professor Kobach, I would also like to ask you
another question. I know you have been very successful on
litigation across the country dealing with these particular
types of issues. Obviously we detest the concept of racial
profiling. But how do you balance the issues of trying to
provide for border security, items of national security that we
have? Obviously you are saying that with ICE, there are not
enough agents that can handle this problem on their own. Am I
correct on that?
Mr. Kobach. I think that is a fair statement. We always
need more ICE officers.
Mr. Harper. So in order to deal with this issue of concern
of some reported incidents of racial profiling, doing away with
287(g), would that be the solution to that?
Mr. Kobach. Not at all. And I am glad you asked that
question, because one of the witnesses on the previous panel
mentioned some jurisdictions that there were reports of
incidents, not formal findings, but just reports of racial
profiling, and the jurisdictions weren't even section 287(g)
jurisdictions. So to assume causality, to assume that a 287(g)
agreement somehow causes or facilitates racial profiling is
simply illogical.
And I would note, furthermore, that the officers who have
received 287(g) training have received twice as much training
against racial profiling as any other officer in Federal and
State law enforcement. They receive their own State-level
training against racial profiling--whichever State gives--and
they have received ICE training against racial profiling. Most
Federal officers have only received one set of classes. So they
are actually very well trained.
And I would finally note that throughout the entire
testimony of every other witness that we have heard today,
there have been reports, anecdotes, but there has not been one
internal affairs investigation that has ever found any racial
profiling by a 287(g) officer. There has not been one count
that has ever found any truth in any report of any racial
profiling incident.
We are a country of the rule of law. And we do not punish
people based on mere allegation or mere anonymous report. We
are a country where we have inquiries done under rules of law,
and under such inquiries there has never been any finding of
any racial profiling associated with 287(g).
Mr. Harper. Professor Kobach, it appears that one of the
big concerns of the first panel was that people within an
illegal immigrant community in this country were afraid to
report crimes.
As a former city prosecutor in two cities, that certainly
wasn't the case where I prosecuted. We would have people that
were there that were undocumented, that were here illegally who
were witnesses in a crime. And the only way that anybody would
ever come in was if that individual had been convicted of a
crime and was held for jail time.
Has that been a problem that you have seen across the
country?
Mr. Kobach. Not at all. And, indeed, this is one of the
great red herrings of State and local law enforcement assisting
the Federal Government in this regard. The argument is always
made, well, you will see fewer witnesses come forward. There
has not been one study, one piece of empirical evidence offered
that that is actually happening. And frankly, I think a lot of
people would be surprised to know that there are visas
available for people who come forward and report crimes. Those
visas are for people who lack status currently.
And so not only is there no disincentive, because you are
certainly not going to see the police departments turning away
willing witnesses, they actually have something to give them, a
benefit that can be received under immigration laws. The S-Visa
is one of them.
So I think this whole argument about the loss of witnesses,
number one, there is no proof that it ever occurs; but number
two, if it were happening in any of the 67 jurisdictions, don't
you think one of those jurisdictions would say, all right,
we're done? Anyone is free to leave the program, none of them
have.
Ms. Lofgren. The gentleman's time has expired.
I would like to ask the chief some questions because we
have reviewed a report by the Goldwater Institute--which I
think is a pretty conservative institute by the name--and this
is a quote from their review of the Maricopa County Sheriff's
Office. ``The sweeps are often conducted in jurisdictions that
have their own police departments; yet without coordination
with those departments, creates extremely dangerous conditions
for law enforcement personnel and bystanders.'' That is what
the Goldwater Institute indicates.
As I understand it--you will correct me if I am wrong--your
police jurisdiction is within Maricopa County. And I haven't
had a chance to talk to you or ask you, but last year, in
October, The New York Times reported a very disturbing story
where the sheriff, according to the paper, apparently conducted
a raid on Mesa's City Hall to apprehend a janitor who they
believed didn't have proper papers. And according to the
report, it was a group of vigilantes who participate in
Maricopa County Sheriff's Posse Program that more or less
stormed City Hall in pursuit of this allegedly undocumented
immigrant from some anonymous tip.
Can you tell us what happened? Are there posses then used?
Did the sheriff consult with you? Were there risks associated
with this raid? As a police chief and a professional, can you
advise us whether this is a good idea and what the downsides
are?
Chief Gascon. Thank you, Madam Chair. And actually, if I
could for a moment go back to the sweeps, because the Maricopa
County Sheriff has been in the city of Mesa multiple times in
pursuance of their 287(g) or some other immigration
enforcement. It actually started, there was one of those crime
suppression sweeps that occurred prior to the raid on City Hall
and on the public library. And in that particular instance, the
sheriff was asked what was the reason for him going into Mesa.
And I am quoting here basically. It came out, it was published
in the East Valley Tribune where the sheriff indicated, ``I
have a strange whole philosophy that if someone does something
for you, gives you resources, gives you money, I think they
want something back, and we ought to do it,'' he said. And he
was referring to the fact that he had been asked by three or
four local politicians to come into the city of Mesa.
If you look at the 287(g) program, really one of the things
that ICE talks about is that there should be articulable
reasons, such as patterns of crimes, 911 calls, and other
information that indicates that there is a crime problem in
this particular area and the enforcement of 287(g) would help
reduce the crime. In this particular case, the sheriff himself
indicated, according to the East Valley Tribune, that he was
simply coming into Mesa because he was paying back a political
favor.
Concerning the raid on City Hall and on the public library,
that was a very disturbing moment, quite frankly. Many of us
were shocked. We for a moment thought that we were perhaps in
the Third World somewhere and not in a First World Nation.
What occurred was that at approximately 1:30 in the
morning, I get a notification from my patrol personnel that one
or more officers driving through a local park saw a very large
number of people--it turned out to be later on they were
approximately 60--that were suited up in tactical gear, many
were wearing masks. And it was hard for the officer initially
to discern what the origin of this group was.
And it was very concerning because not long before that,
there had been an incident in the city of Phoenix where a group
of individuals related to some drug organization had come in,
they had dressed in police tactical gear in order to go and
assault a contender and commit a homicide. And they actually
confronted the police. So our officers were very concerned.
When our officers finally approached, they realized that
these were members of the Maricopa County Sheriff's Office.
They made contact. They asked what they were doing there. The
first officer was told by the Maricopa County Sheriff personnel
that they were unable to discuss the reason for being there. So
that was followed up.
They also called the supervisor. The supervisor came to the
scene. Initially he was told by members of the Maricopa County
Sheriff's Office that they were there to do canine training.
The sergeant looked around; there were two or three canines,
there were approximately 60 officers. The math didn't quite add
up. So he called the lieutenant. The lieutenant came up. He was
also not given the information. And finally, about 5 minutes
before 2 o'clock, we realized that they were going to make
entry into two municipal buildings: one, the main library, and
the other one was City Hall.
Still to this point we had no idea what was going on. I was
asked by my people for instructions. And basically what I told
them was to cooperate and to stay out of the way of the
sheriff's office. And then what occurred--and later on we saw
this on closed circuit TV--is we saw large numbers of members
of the Maricopa County Sheriff's Office dressed in tactical
gear storming the two buildings.
In the case of the public municipal library, several
minutes later you can see two females in their forties or
fifties that are being taken out. And they were arrested--and
then there was one other individual that was in the parking
lot--allegedly for being in the country without authority at
the City Hall. Many folks were interviewed, and we could see
that on closed circuit TV. They were asked for identifications.
There were no arrests made.
As we continue further down the line on this, obviously
this was very shocking to us. There was another search warrant
that was served later, at approximately 7 or 8 o'clock in the
morning, in one of our police facilities and searched for
records. And, quite frankly, we were extremely disturbed by the
whole incident. We later found out as we started to investigate
ourselves, as an allegation that came from the Sheriff's
department, they were there to do a job that we were not doing
because of the negligence of one of our lieutenants; that the
declarations that were used to execute this warrant actually
contained significant false information. It was provided to the
sheriff's department as well as the county attorney, and we
haven't heard since.
Ms. Lofgren. By unanimous consent, I will take just one
additional minute to ask you this. Would it be possible for you
to share that footage with the Committee, to send it to us?
Chief Gascon. I will look into it. I believe we do have it
saved. Let me look into it, please.
Ms. Lofgren. And secondarily, it has been reported--and I
don't know if this report is true or not--that in some of these
raids, your police have actually had to be deployed to protect
the citizens of Mesa from the sheriffs. Is that just false,
or----
Chief Gascon. No, ma'am, it is not. One of the things that
we noticed in some earlier operations by the sheriff's
department in the city of Phoenix was that there were large
numbers of people coming, both pro and against the operation.
And the level of tensions was becoming very evident. There were
incidents reported where people were shoving each other,
brandishing weapons. We were very concerned. So I wanted to
make sure that if the sheriff was going to do an operation in
Mesa, we requested notification so that we could deploy
accordingly, because we anticipated a lot of people coming to
Mesa to demonstrate, and certainly there in the first raid we
had that. We had to deploy a significant number of people and
actually separate people.
Ms. Lofgren. Thank you very much. My time has expired. I
understand that Mr. King has asked that Mr. Franks be
recognized next for his 5 minutes, and he is so recognized.
Mr. Franks. Well, thank you, Madam Chair. And I just wanted
to first start out by welcoming Police Chief Gascon from
Arizona. I believe the police chief to be an honorable man that
has dedicated his life to protecting the innocent in his
society, and I don't know where we would be without people like
him. So I want to welcome you, sir.
Madam Chairman, regardless of what the hearing here is
ostensibly named or what my colleagues on the Democrat side
choose to emphasize, the effect of this hearing is geared
toward dismantling--at least in my opinion--any meaningful
immigration enforcement policy, or at least the intimidation
and chilling of lawful law enforcement activity.
My friends on the Democrat side seem to have a multifaceted
systemic approach, with workplace inspection stopped, funding
for E-Verify removed, and severely weakened 287(g) programs,
all of which makes securing our borders very difficult.
And Madam Chair, it is so important to remember, I am on
the Armed Services Committee, and I believe that the most
important elements of border security remain to be national
security.
But we still live in a 9/11 world.
Arizona is now the capital of kidnapping in all of the
world, with the exception of Mexico City. The Arizona Criminal
Justice Commission told my staff just this week that there are
more kidnappings in Maricopa County than there are in Baghdad
or Islamabad or Caracas. And that is because Arizona has
hundreds of miles of border with Mexico to monitor, and our
Federal Government is simply not doing the job.
And that is why 287(g) was put into place in the first
place, because D.C. Either couldn't or wouldn't do the job, and
so State and local officials responded. And they are doing a
tremendous job toward curbing illegal immigration and securing
the border in ways that are related, and, of course, the
inherent criminal activity that comes with it.
Now, recently, Sheriff Joe Arpaio of Maricopa County has
come under fire by Members of this Committee and the Department
of Justice for, in my opinion, trying to enforce the law as he
understands it and as it was written in section 287(g) by this
Congress. And it appears to some in Arizona that a witchhunt
has been initiated against Sheriff Arpaio for trying to enforce
the law to keep Arizona safe.
And since I am the only Member here of the Committee that
is on the ground in Maricopa County, perhaps I am more familiar
with Sheriff Joe than anyone else here today. Now, I will just
be very open. There are many times when I have not agreed with
the sheriff and his approach or his tone. And I want to make
that clear. But I still believe, along with many others in
Arizona, that it appears that he has become a scapegoat used in
a tactical assault focused on diluting the powers of 287(g)
nationwide.
The reason that I don't believe Sheriff Arpaio is guilty of
racial profiling, as some have said, is simply because of my
own observations. He has personally assured me that this is not
the case and he has, at all times, tried to conduct his efforts
within the boundaries of the law.
It is also true that a simple statistic gets in my way: 33
percent of those in Maricopa County jails are illegal
immigrants--33 percent--and yet 53 percent of violent crime in
Maricopa County is perpetrated by illegal immigrants. Now, I am
not sure you can come away with a statistical way to indicate
that racial profiling is happening, based on that statistical
reality.
Over the last few years, the 370-mile Arizona border has
experienced increased violence associated with drug and human
trafficking and due to conflict among cartels and gangs such
the MS-13, resulting in a new breed of crime some refer to as
narcoterrorism. And, of course, I have already mentioned the
danger of potential terrorist incursion into our country.
United States border communities are being gravely affected
by the spillover of drug-related violence, resulting in
hundreds of assaults on border agents each year. Currently, as
I said, over 33 percent of inmates in Maricopa County Sheriff
facilities are illegal immigrants, and more than 53 percent of
violent crimes are committed by illegal immigrants.
So my question, Professor Kobach, given your expertise in
race and ethnicity guidelines and in law enforcement activity,
and given the statistics I have just mentioned, and under
current Supreme Court precedent, do you believe that there are
statistical indications that there is law enforcement activity
in Arizona, Maricopa County, creating a disparate impact on
persons of Mexican or Central American national origin that
violates the Constitution? It is a hard question, but I still
ask it.
Ms. Lofgren. The gentleman is, by unanimous consent,
granted an additional minute so the witness can answer.
Mr. Kobach. Well, certainly not. The statistics do not
support it. And, of course, statistics alone wouldn't establish
that racial profiling had occurred or that any discriminatory
actions by police officers had occurred. So we have to be
cautious about attributing too much to statistics about race of
people arrested or incarcerated versus race of a community or
ethnicity.
But I would point out that there are many, many legal
avenues available if racial profiling occurs. There is not a
specific Federal law, but there is, of course, a general
Federal law. It is possible to bring a lawsuit under section
1983 to recover monetary damages for any State or local
official who illegally or unconstitutionally engages in racial
profiling. There are also State laws that can be brought to
bear in almost every State.
So, if it were occurring significantly or
disproportionately or even at all, you would see some of these
suits being brought and achieving success in the courts. We
have not seen that in any of the 287(g) jurisdictions. And so,
again, I think it is wrong to attribute any causality. And,
indeed, the effect hasn't yet occurred, in terms of something
that we can say, ``yes, it has been proven in this incident.''
Ms. Lofgren. The gentleman's time has expired.
And we have been called for votes, but what we have agreed
to do is to go as long as we can here. It is just one vote. So
we will wait until the end, rush over, cast our votes, and then
immediately return to finish this discussion.
But I think we have time for at least one additional Member
to begin questioning. So I would recognize the Chairman of the
Constitution Subcommittee, Mr. Nadler, for his questions.
Mr. Nadler. Before I ask my questions, I must just object
to one thing that Professor Kobach said. I have never in my
life heard the Southern Poverty Law Center called a spurious
institution. The Southern Poverty Law Center is, by almost
unanimous consent, one of the most respected institutions in
this country. You may want to sue it for libel or slander, that
is your privilege, if you think what it said was not correct. I
am not going to comment----
Mr. Kobach. You should----
Mr. Nadler. Excuse me, I am not asking a question. I am
making a statement right now.
I am not going to comment on the letter or on your defense
of it. That is beyond what I want to say. But to call the SPLC,
which may or may not have done the wrong thing here--I think it
didn't do a wrong thing, but that is not the point. You can sue
them for libel if you want, but to call them a spurious
organization.
This is a group that helped implement the Civil Rights Act
of 1964 and 1965, whose courtroom challenges led to the end of
many discriminatory practices, including ending the involuntary
sterilization of women on welfare, reformed prison and mental
health conditions, resulted in landmark decisions by the U.S.
Supreme Court, developed strategies to hold White supremist
leaders accountable for their followers' violence, sued for
monetary damages and recovered against the Klan, and shut down
several Ku Klux Klans.
Its quarterly intelligence report is read by nearly 60,000
law enforcement officers nationwide. And its Intelligence
Project research has led to criminal convictions in several
hate crime cases. And they are generally considered the leading
authority on racist and hate groups in this country today. So
calling them spurious is a little beyond the pale.
Chief Gascon, the December 2008 report by the Goldwater
Institute was already referenced. That report found that, in
Maricopa County, between 2004 and 2007, violent crimes grew by
over 69 percent, including a 166 percent increase in homicides
over the 3-year period. In contrast, the annual report, violent
crimes in Mesa, Arizona, your hometown, decreased by 11
percent, and the number of reported homicides stayed the same
in Mesa, which is during the same time period. Mesa, of course,
is located in Maricopa County.
So, in other words, there is a 166 percent increase in
homicides, 69 percent of violent crime in the county as a
whole, but a decrease of 11 percent in violent crime and static
homicides in Mesa.
How do you account for the increase of violent crimes in
Maricopa County at the same time that they decreased in Mesa?
Chief Gascon. Well, in my opinion, it has to do with the
lack of police attention to the local law enforcement work. In
Mesa, we concentrate on dealing with the people that are
committing the local crimes. And, frankly, many times, we have
to deal even with crimes that are being committed in what we
call the county islands, which are policed by the sheriff
department, because it impacts our own crime.
I think the problem--and we have seen this not only in
those areas that are policed by the county, but we also have
seen it in areas that were previously contract to the county,
for instance, like the city of El Mirage, where that city was
policed by the county, they ended the contract, hired their own
police department, and all of a sudden realized that there were
about 300 violent crimes that had gone uninvestigated by the
sheriff's department because they did not have the resources to
do the work.
Mr. Nadler. So, in other words, the sheriff's department,
in your opinion, is concentrating on this 287(g) work and
leaving the violent crimes uninvestigated, to a large extent?
Chief Gascon. Well, certainly, they are not concentrating
on local crime issues. And that is why their crime stats are
going as high as they are.
Mr. Nadler. Thank you.
Let me ask any of the--Professor Harris or Mr. Williams or
Police Chief Gascon. I am going to be very blunt in one
question. Why should an American who is not an immigrant, does
not have immigrant family members or friends, does not care
about immigrants, why should such a person be concerned about
State and local law enforcement getting involved in immigration
enforcement?
Mr. Harris. Chairman, the answer is pretty straightforward.
Crime goes up, just as you were pointing out, it went up in
Maricopa County. When we divert local law enforcement resources
into the task of immigration enforcement, where it doesn't
belong, regular criminal behavior goes unaddressed. And that
spills over onto everyone. Crime doesn't take a holiday as to
any particular community. It spreads through the entire
community, disorder spreads everywhere.
Number two is resources and cost. This isn't free. This is
all taking away from what local law enforcement should be doing
as its core mission: serving everybody, including people who
might not care at all about immigrant issues or immigrant
families.
Number three, you have lots of people whose safety is on
the line every day in police departments. These people are
risking themselves for our safety. We should allow them to
concentrate on what they know and what they are good at.
Mr. Nadler. Thank you.
Let me ask one further--I ask unanimous consent for one
further----
Ms. Lofgren. Unanimous consent for 1 additional minute.
Mr. Nadler. Thank you.
Let me ask either Professor Harris or Police Chief Gascon,
in the previous panel--I assume you heard the testimony of the
previous panel--we heard Professor Tranchant talk about the
killing of his daughter by someone who was drunk-driving, an
illegal immigrant who had been arrested several times
previously for drunk-driving.
Now, this hearing is on the question of 287(g) enforcement.
My question is the question of a logical fallacy. The
implication of what he was saying is, if you had had 287(g)
enforcement, this might not have happened.
My question is the following: Under the law, with or
without 287(g) enforcement, if someone is arrested for a crime
and this person is found to be an illegal immigrant, an
undocumented alien, they can be reported to the INS or the ICE,
whatever it is these days, and deported when their sentence is
up.
So the real problem here seems to be that, despite several
arrests and convictions for DWI or whatever, this person was
not deported. So my question is, does this have anything to do
with 287(g), or is it a question of failure to enforce existing
law?
Ms. Lofgren. The gentleman is granted an additional 30
seconds.
Mr. Harris. You have caught it exactly, Mr. Chairman. It is
a question of enforcing existing law. We have immigration laws,
as one of the other Members pointed out. None of us here are
against immigration law or the ability of the Nation to police
its borders and enforce its law. If the Federal Government
would step up and do its job, as a number of people have said
here already, it wouldn't be necessary for local law
enforcement to come into it.
So this isn't a 287(g) problem that Professor Tranchant was
pointing out. It is a problem of Federal role being properly
fulfilled.
Ms. Lofgren. Would the gentleman yield to me for a quick
moment?
Mr. Nadler. Certainly.
Ms. Lofgren. As our colleague from Arizona was reciting
some statistics, I did note that the Chief was wincing.
And do you have a disagreement with our colleague on the
statistics that he had recited?
Chief Gascon. Yes, Madam Chair. First of all, I can tell
you, in my own jurisdiction, we have been tracking for over the
last year who we arrest that is in the country illegally, and
our numbers range around 9 to 10 percent annually. And we have
a Hispanic population that probably exceeds 30 percent today
but, certainly, according to the Census, over 25 percent. And
we know that a substantial part of that population is in the
country without authority.
I think also, if you look----
Ms. Lofgren. Could I ask you this? Would you be willing to
submit those statistics to us for the record?
And we are going to recess this hearing. We have one vote.
We are going to rush over, vote, and come back, so we will not
be having you wait here for a long, long time. But we don't
want to get all of the Members an opportunity to ask questions.
So we are going to recess for just a few minutes until we vote
and return.
[Recess.]
Ms. Lofgren. Under the rules, we can reconvene with two
Members. And although the Ranking Member, I think, is on his
way, we do have three Members and a bipartisan group. So we
will turn now to the gentleman from Texas, Mr. Poe, for his
opportunity to question our witnesses for as long as 5 minutes.
Chief, are you okay on time?
Chief Gascon. Madam Chair, they are trying to find out if
there is another flight.
They did find it?
So I am good.
Ms. Lofgren. Okay, so you got a later flight, and we
appreciate that.
Chief Gascon. They said you are going to have to give me a
hall pass. And I am probably going to be killed, not by the
cartels, but by my family.
Ms. Lofgren. I hope not.
We will turn now to Mr. Poe for his questions.
Mr. Poe. Thank you, Madam Chair.
I direct most of my questions to the Chief.
And I just have a few minutes, Chief, and I know you have
testified in court before. So, just answer the question; don't
explain your answer, unless I ask you to do so.
There are 16 border counties in Texas. All of the counties
are controlled by sheriffs who are Democrats. Most of them are
Hispanics. To a person, they believe in enforcement of all of
the laws in the county.
Hudspeth County, TX, a big county, size of Delaware, Chief
Arvin West. When I visited with him over the weekend in
Hudspeth County, watching the crime there, it has two jails,
one a contract jail and one a county jail. The county jail has
125 inmates; the contract jail has 320-plus. Of all of those
people in jail, two are American citizens. All of the people,
except the two citizens, are not in jail on immigration
violations, they are in jail for committing crimes in the
county other than just being in the county illegally.
He, like most of the sheriffs on the Texas border anyway,
believe that cross-border crime is a tremendous problem. And
they need all the help they can get to enforce the law,
immigration laws or otherwise.
I suspect that in Mesa, the city of Mesa, you enforce
traffic violations, parking violations, jaywalking violations,
prostitution violations, what we consider in the system the
most minor of all crimes. Is that correct?
Chief Gascon. Yes.
Mr. Poe. But you personally don't believe that the city
should be helping in immigration violation arrests. Is that
correct?
Chief Gascon. That is incorrect.
Mr. Poe. So you think that you should participate in
helping with immigration violation arrests.
Chief Gascon. When we have serious crimes, yes.
Mr. Poe. Only when a crime is committed. I am talking about
immigration violation. This person is in the country illegally;
he didn't rape, commit a robbery, or steal. He is in the
country illegally. Do you think the city should participate in
that?
Chief Gascon. How would we know that the person is here
illegally?
Mr. Poe. Don't ask me questions. Answer the question. We
assume--if you knew the person was in the city illegally, do
you think that you have an obligation, as a peace officer, to
help enforce that law? Either you do or don't.
Chief Gascon. I think the problem with your hypothetical is
that I have no way of knowing how I got that information.
Mr. Poe. So you don't believe you should enforce the law if
the person is in the city illegally. You know he is in the city
illegally.
Chief Gascon. How do I know that I----
Mr. Poe. He tells you. If we are going to have
hypotheticals, he tells you, ``I am here illegally. I am from
France.'' Do you think----
Chief Gascon. Right. Our policy is that if he tells us he
is here illegally, the officer has the option to provide the
information, and we give it to the Federal authorities so that
they can act accordingly.
Mr. Poe. But you don't believe you should arrest him, the
city should arrest him?
Chief Gascon. That we should arrest him?
Mr. Poe. Yes.
Chief Gascon. It would depend on the circumstances.
Mr. Poe. Okay. Well, you are not answering the question. I
will move on.
Isn't it true that you have had raids in the city before,
with Sheriff Arpaio--interesting enough, he is not here to
testify; he wasn't invited, but you were--and you have been
told that he is coming into your city, as good law enforcement
officers do, and all of a sudden----
Ms. Lofgren. Would the gentleman yield? Because I want to
make clear that he declined to come. And I would yield back.
Mr. Poe. All right. I thank the Chair. I was told by him
that he was not invited, but be that as it may, I accept the
Chair's----
Mr. King. Madam Chair, clarify that, please. Was he invited
formally?
Ms. Lofgren. No. He said in advance he would not intend to
come, so we didn't follow up with a formal invitation, no.
Mr. King. In a formal communication with the Committee?
Ms. Lofgren. No, in a newspaper article. He said he would
not come.
Mr. King. Thank you.
Mr. Poe. Isn't it ironic that, when you have been informed,
as the police chief, that he is coming into your city on
immigration violations under 287(g), that all of a sudden the
newspaper in Phoenix, AZ, reports that before that raid occurs?
Maybe that is the reason you are not told anymore, is because
someone seems to tell the press. Has that occurred, to your
knowledge?
Chief Gascon. Actually, it is very ironic, because I got
notification from the media that he was coming, not from him.
Mr. Poe. I am not talking about the most recent. I am
talking about the ones before the most recent.
Chief Gascon. I am talking about the one before the most
recent. The notification came from the media to me first and
then----
Mr. Poe. Who paid your way to get here today?
Chief Gascon. Who paid my way?
Mr. Poe. You heard me. You paid your way?
Chief Gascon. A group of nonprofit organizations that are
seeking immigration reform.
Mr. Poe. Okay, so the city didn't pay your way, the
taxpayers didn't pay your way, but some immigration people paid
your way.
Chief Gascon. Some people that are seeking immigration
reform.
Mr. Poe. I see. Wouldn't you agree with the statement that
we dance with the ones who brung us? And if you were brought
here by a certain group, you are kind of beholden to them to
testify a certain way?
Chief Gascon. Sir, I take offense to your comments. I don't
dance with anyone. I am not beholden to anyone. I have been in
this business for 30 years. Prior to that, I was honorably
discharged from the U.S. Army. I have an impeccable career,
with honesty and integrity. And I believe in standing for what
I believe is correct.
Mr. Poe. All right. What are the names of those groups?
Ms. Lofgren. The gentleman's time has expired.
Mr. Poe. Thank you, Madam Chairman.
Mr. King. I would ask unanimous consent that the witness be
allowed to answer.
Chief Gascon. I am sorry?
Ms. Lofgren. There has been a request for an additional 30
seconds. So you may, if you wish, identify individuals who have
donated for your opportunity to be here.
Chief Gascon. The individuals, I believe--what is the name
of the organization?
Ms. Lofgren. If you don't have them, you can submit them
for the record later.
Chief Gascon. Yes, I will submit it to you.
Ms. Lofgren. That will be fine.
At this point, I would recognize our colleague, Mr.
Johnson, Chair of the Courts Subcommittee, for his opportunity
to question the witnesses.
Mr. Johnson. Thank you, Madam Chair. And I think this is
just a great topic for us to be delving into.
One thing that I would like to know, the local law
enforcement agencies that sign up for this program under 287(g)
to enforce the Federal immigration laws, is there a
concentration as to, you know, like, South or Midwest that a
lot of the requests and certifications, I guess, have been
awarded to? In other words, are there places in the Nation
where local law enforcement seems to be involved in this?
Mr. Kobach. I have the list.
Mr. Williams. The great majority is in the Southeast and
Southwest. Sheriff's offices constitute a significant number.
It is something like 67 law enforcement organizations
nationally involved with 287(g), out of 17,000 police
departments.
Mr. Johnson. Total.
Mr. Williams. That is correct, total.
Mr. Johnson. And how many of these are in the Southeast----
Mr. Williams. I can tell you in excess of 50 percent is in
Southeast and Southwest. I can't be more specific than that.
Mr. Johnson. And I will get to you, too, sir.
Other than the fact that--is there any other reasons for
that kind of consolidation in certain parts of the country,
other than the high number of Hispanics that reside in the
area? Are there any other justifications or rationales that
people have used to go for this certification, other than just
we have a lot of Hispanics in the area.
Mr. Williams. Well, just one little comment on that.
Mr. Johnson. And I am sorry for being--it is kind of
difficult for me to express myself the way I want to right now,
because I am just coming in from an event and thinking about
some other things. But if you could answer.
Mr. Williams. We just held focus group meetings with about
33 police departments in the State of Texas and Kansas and in
Florida. If you talk to those police leaders about what they
feel about 287(g) and the departments that are getting
involved, you will find that there is considerable political
pressure for local police departments to become involved in the
enforcement of Federal immigration laws.
And I think that in the South you probably get a greater
amount of pressure, because the South is one of the new
migration points for the immigrants as they come into the
country. There used to be gateway areas, but now the South is
the area that they are moving to. And it is creating issues
associated with the politics, because of the differential in
terms of persons that are coming in.
Mr. Johnson. But there is really no other reason----
Mr. Williams. Those are the ones that I know.
Mr. Johnson. Okay.
And, Mr. Kobach, do you want to answer that question, also?
I want someone else to answer if any of the agencies get
any Federal funding to do what they do.
Mr. Kobach. I can answer specifically your--I have the list
of the 67 agencies that have it. It is pretty well distributed
around the country: four in California, three in the State of
Massachusetts, one in Minnesota, one in Missouri, nine in
Virginia alone. And in Arizona there are--sorry, I said in my
testimony earlier that there were six; there is actually a
total of seven jurisdictions in the State of Arizona. So it is
pretty well widespread.
But I think it is fair to say there are a significant
number in the Southwest and in the Southeast, but that is also
the case that the Southwest and the Southeast have seen a large
influx of illegal immigration. And so we can see the 287(g)
program as local entities, sovereign States or countries--not
sovereign counties--but sovereign States saying, we have a
need----
Mr. Johnson. Certainly, States have the right, if they are
not preempted by the government. So that is fine, I understand
that. I want to--because I am running out of time. I also want
to ask, I know that there is an approval and a training
process.
Mr. Kobach. Four to six weeks of training.
Ms. Lofgren. The gentleman's time has expired. Does he ask
unanimous consent for an additional minute?
Mr. Johnson. I do.
Ms. Lofgren. Without objection, so ordered.
Mr. Johnson. All right.
Once you have certified, you start enforcing, picking folks
up and enforcing the Federal law, is there a way for people who
feel like they are aggrieved by the law enforcement conduct, or
misconduct as they may see it, is there someplace that they can
file a complaint with a neutral body that will look at it?
And, also, the money issue. How do we do continuing
education, if you will, continuing certification to make sure
that the standards are being upheld?
Mr. Harris. Mr. Johnson, as far as your question about
complaints, one of the great problems with looking at what is
going on in this area--and I have heard a couple of witnesses,
different people, say this morning, ``Well, we have no
complaints about that.'' There are two things you have to
remember: Complaints are not a measurement of conduct by law
enforcement or by anybody else about who----
Mr. Johnson. No, I am not inferring that it is, but I would
think normally you would have some kind of mechanism.
Mr. Harris. Well, you should have a mechanism, but the
problem is that the people in this process who might have
complaints are often deported or they are in fear of making
complaints because they, themselves, somebody in their
household may be illegal, since we have millions of people in
mixed-status households. That is why there is such a low level
of complaints even when there are processes for it.
Ms. Lofgren. The gentleman's time has expired.
I would turn now to the Ranking Member, the gentlemen from
Utah, and he is recognized for 5 minutes.
Mr. Chaffetz. Thank you, Madam Chair.
I ask unanimous consent to insert into the record an
article that appeared in today's Examiner entitled, ``Violent
Crime Down in Prince William.''
Ms. Lofgren. Without objection.
Mr. Chaffetz. Thank you.
[The information referred to follows:]
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Mr. Chaffetz. Thank you all for being here and changing
your flight. It is very nice and very kind.
Professor, you were very emphatic at the beginning of your
testimony that there is no training whatsoever for those in
agencies and those officers that are engaged or fall into this
287(g). Do you care to clarify the record there? They are
trained, are they not?
Mr. Harris. The agencies----
Mr. Chaffetz. Yes or no, are they trained?
Mr. Harris. The agencies that are involved in 287(g)
receive 4 weeks of training. That is what the GAO said.
Mr. Chaffetz. Okay, but at the very beginning of your
testimony, you said no training, no education, no ability--I
mean, these are law enforcement officers who have gone through
extensive training not only about the law but about the
Constitution, and so they have about background in this. And
they go through a very specific training, do they not?
Mr. Harris. Only the ones in 287(g). The rest of the local
and State law enforcement officers that I was talking about get
no training in immigration law, none.
Mr. Chaffetz. Professor Kobach, could you, from your point
of view and perspective, tell us a little bit about that
training that they do go through?
Mr. Kobach. Each memorandum of agreement that is signed
with a jurisdiction for 287(g) specifies what the areas of
training will be, and it varies because some jurisdictions
would like to do more with their authority than others. For
example, if a jurisdiction is just reviewing prisoners and not
actually out in the streets operating as so-called deputized
agents of the Federal Government, then they would need less
areas of training. So those would be only a 4-week program.
But, for example, Florida, the first jurisdiction that got
287(g) authority, they had 6 weeks of training. Alabama's
officers had 5 weeks of trainings. So it varies. Each MOA----
Mr. Chaffetz. But they are trained.
Mr. Kobach. They are all trained, absolutely.
Mr. Chaffetz. Yes. Thank you.
Professor Harris, what other Federal laws do you suggest we
not enforce at the local level?
Mr. Harris. I suggest that the appropriate agencies enforce
all the laws that are on the books. The Federal Government and
ICE should enforce immigration law. I want my local police
enforcing my criminal codes and my city codes. And----
Mr. Chaffetz. But the implementation of 287(g) you believe
would be inappropriate?
Mr. Harris. For local people to do that? Yes, because they
have a job to do, and it interferes with that job. It shifts
their resources away from----
Mr. Chaffetz. But it doesn't have anything to do with a
lack of training. They go through training.
Mr. Harris. If they are under 287(g).
Mr. Chaffetz. So if they are under 287(g), there shouldn't
be a problem with them enforcing the immigration laws, even at
the local level?
Mr. Harris. That is if you assume that the 4 weeks of
training is enough to get them up to speed on what is one of
the most complicated bodies of law that we have. And I simply
don't accept that.
Mr. Chaffetz. Well, okay. I think that is clear, that you
have no desire to have them do that. I understand that.
Would you then join me, if you think that there is a lack
of training and understanding, would you support me in
supporting funding for thousands of new Federal immigration
enforcement agents who would be trained in the nuances of
immigration law?
Mr. Harris. If we want real immigration enforcement, yes.
There has to be a lot more well-trained and experienced
immigration, dedicated immigration----
Mr. Chaffetz. You would actually join in advocating that we
spend much, much more----
Mr. Harris. Absolutely, absolutely. If that is what the
American people and the Congress want, they have to step up and
fund it.
Mr. Chaffetz. Very good. In your written testimony, you
discuss the actions of Maricopa County Sheriff Joe Arpaio. Have
you ever met the sheriff?
Mr. Harris. No.
Mr. Chaffetz. Have you ever been there?
Mr. Harris. Oh, yes.
Mr. Chaffetz. To his facility.
Mr. Harris. To his facility? No. I have been to his
jurisdiction.
Mr. Chaffetz. I mean, you have been to Phoenix, okay. But
have you ever been involved with the sheriff's department
there? To what extent have you interacted with them whatsoever?
Mr. Harris. I haven't interacted with them, but I have read
the Goldwater report very extensively. I have talked with its
author very extensively. And I am aware----
Mr. Chaffetz. So you, personally, have no direct experience
with Joe Arpaio or the sheriff's department there in Maricopa
County, correct? Other than reading an article?
Mr. Harris. No, not other than reading an article. And I am
also aware----
Mr. Chaffetz. Have you ever been there?
Mr. Harris [continuing]. That there are three lawsuits
against him, as well.
Mr. Chaffetz. I am sorry, say that again?
Mr. Harris. There are three lawsuits existing now for
racial profiling in Maricopa County.
Mr. Chaffetz. But you personally have never--okay, I think
I understand that.
And, finally, could we talk a little bit about the NCIC? I
think there was some confusion, and, Professor Kobach, I would
appreciate it if you could expand a little bit and explain how
that works, who goes into the system, who doesn't, from your
perspective, please.
Mr. Kobach. I would be happy to. Chairman Conyers earlier
suggested he thought that maybe your name could appear in NCIC
simply because you reported a crime. That is incorrect. NCIC is
a shared database that is under the custody of the Department
of Justice and Attorney General and that State and local
jurisdictions can input data. The data they bring into it is
usually arrests--where a person is formally documented,
fingerprinted--arrests and criminal convictions.
Now, the Federal Government puts in all kinds of data.
Recently, when I was working at the Department of Justice, we
started bringing in alien data. There are only three categories
of aliens in NCIC, and one of the witnesses, I think, misstated
in written testimony the categories. The first one is
previously deported felons, and these have previously been
deported from the United States because of serious felonies and
have tried to reenter or may reenter, and therefore we would
want the local officer to know who he is encountering. Second
is absconders. We have over half a million people in this
country who have had their day in immigration court, have been
deported, and have become fugitives.
Ms. Lofgren. The gentleman's time has expired and, by
unanimous consent, is granted an additional minute.
Mr. Chaffetz. Thank you.
Mr. Kobach. And those absconders are fugitives who have
already had their day in immigration court. And, obviously, it
is a mockery of the rule of law if we can't even enforce what
our immigration courts are supposed to be doing.
The third category of aliens in NCIC are aliens of a
national security risk. And those are individuals who have
committed some immigration violation, no matter what it is, but
are also of a higher national security concern. And that is
borne in part out of the fact that there were five of the 9/11
cohort who had committed immigration violations. The most
common violation was overstaying a visa, which is a civil
violation.
On September 9, 2001, just north of here, on highway 95,
Ziad Jarrah, one of the pilots, was pulled over for speeding.
He was going about 90 miles an hour, trying to meet his group
in Newark at the airport. If the officer had had information in
NCIC saying that this individual is illegally present in the
country and we have certain national security questions, we
might have been able to get that officer to detain that
individual. So that is the kind of character we are talking
about.
Mr. Chaffetz. Thank you.
Thank you, Madam Chair.
Ms. Lofgren. The gentleman's time has expired.
The Ranking Member is recognized for his opportunity to
question the witnesses for 5 minutes.
Mr. King. Thank you, Madam Chair.
I do want to thank all the witness for your testimony
today, and this has been a very compelling hearing.
Looking across the panel of the distinguished witnesses
that we have, and I recognize that Professor Kobach has drafted
an Albany Law Review article that is dated 2005 that addresses
the issue of local jurisdiction of enforcement of immigration
law. And I would ask unanimous consent to introduce the Albany
Law Review article.
Ms. Lofgren. Without objection, it is entered into the
record.
Mr. King. Thank you, Madam Chair.
[The information referred to follows:]
__________
Mr. King. And while I am working my way down through this
list of paperwork that has been accumulated during this
hearing, I have in my hand three articles that address the
Southern Poverty Law Center. One is Harper's magazine, one is
Discover the Networks, the other is Human Events. And I ask
unanimous consent to enter those into the record.
Ms. Lofgren. Without objection, so ordered.
Mr. King. Thank you, Madam Chair.
[The information referred to follows:]
__________
__________
__________
Mr. King. And that brings me to another subject here. As I
listen to the focus on at least the implication, if not the
allegation, of racial bias on the part of law enforcement,
especially local jurisdiction, I just began to ask the question
that I didn't know the answer to and I asked staff to go back
and find it for me.
And it would seem appropriate to me that, if we are going
to have nonracially-biased enforcement across this country,
local jurisdiction to the Federal jurisdiction, across the
spectrum, then the enforcement should reflect, perhaps, roughly
the percentage of the nationalities of those who are having the
law enforced against them. In other words, I ask the question,
if this is focused on Hispanic, which has been the case in this
hearing all afternoon, what percentage of illegal immigrants
are Hispanic?
And I have a report here that is produced by the Pew
Hispanic Center that is dated October 2, 2008. And it breaks
this out, and it says that of African descent, 4 percent;
European and Canadian, 4 percent; Asian, 12 percent; other
Latin American, Mexican, 81 percent. So I think that would
reflect that 81 percent of those violators are Hispanic.
And I would ask unanimous consent to introduce the Pew
study into the record.
Ms. Lofgren. Without objection.
Mr. King. Thank you, Madam Chair.
[The information referred to follows:]
__________
Mr. King. So I think I make my point here, that law
enforcement has to reflect and focus on where the laws are
being broken.
And maybe for one more clarification, Professor Harris, I
think I listened to Professor Kobach make a clarification, a
statement on some of your testimony. And I want to give you an
opportunity to respond. And I think it has to do with, on your
testimony, page 3. I am looking at the language, ``In direct
violation of these rules, the Department of Justice puts tens
of thousands of immigration warrants, most of which are civil
in nature and do not even pertain to crimes, in NCIC, with the
goal of forcing local police to make arrests on these
warrants.''
Now, would you care to address that as part of your
testimony? Is it your position that Justice does that?
Mr. Harris. Congressman King, the NCIC database is governed
by a series of Federal statutes and regulations. It is overseen
by the FBI. There are very strict rules on what can go in it
and what can't. And the objective is to keep the database
absolutely clean and pristine of errors and to focus it on
crime.
What has happened over the past several years, 5, 6 years--
--
Mr. King. But is the answer yes?
Mr. Harris. The answer is other than things that are
allowed in that database have been going into it, have been put
into it, yes.
Mr. King. Okay, then you stand on the statement that the
Department of Justice puts tens of thousands of immigration
warrants into NCIC?
Mr. Harris. That has been done, yes.
Mr. King. Thank you.
And I would turn then to Professor Kobach and ask if you
would clarify your response on that, please.
Mr. Kobach. Yes. I would note that Professor Harris didn't
give you a specific rule and did not give you any specific--
there is no statute, certainly, but there is no specific rule
that suggests that people of alien status, as opposed to
citizens, cannot be listed in NCIS or that the basis of an
immigration violation cannot be included in NCIC.
NCIC is--the rules, by Attorney General order, may be
modified as to the protocols of putting people in and out. But
I think it would be foolish to argue that someone who is a
previously reported felon and presents a danger to a police
officer when he is engaged in a traffic stop, that the police
officer should be blind to that information. Or that if our
system, our immigration court system has spent thousands, maybe
hundreds of thousands of dollars at all the levels of appeal
trying to deport a person, and then that person is finally
deported at the end of the day and they vanish, that we
shouldn't try to execute the final removal of that person.
So, you know, it is completely within any regulations that
govern NCIC. And the Department of Justice looked at that very
carefully before aliens were put into the system.
Mr. King. Thank you, Professor Kobach.
Just one concluding question here, and then I will yield
back my time after the response.
But I just have to comment, Chief Gascon, that it is a bit
astonishing to me that you would come here and have your trip
paid by entities out there that don't come to the front of your
mind when you are asked that question before this Committee. I
would think that, in the business that you are in, you would
ask the question before you came, as to who might be funding
it. And I remain curious about that, and if you would like to
further enlighten this Committee, I would sure appreciate it.
Chief Gascon. Yeah. And, as I indicated, I will provide you
that information. There are multiple groups, and I will get
that information to you. It will be a pleasure.
Mr. King. I thank you, Chief Gascon. I am still a bit
speechless at that response, and I would hope that when others
come here they will be able to answer that question up front
instead of in writing afterwards.
And, as I promised, I thank all the witnesses and yield
back the balance of my time.
Ms. Lofgren. The gentleman's time has expired.
Without objection, I would enter into the record the
testimony of William Riley, the acting executive director of
the Office of State and Local Coordination for ICE, that was
offered to the Homeland Security Committee, which I also serve
on, on March 4, indicating that in entirethe State of Florida
there are 58 officers who have been trained under the program.
[The information referred to follows:]
__________
Ms. Lofgren. And also, without objection, I am entering
into the record the executive summary of the Justice Strategies
report, indicating that 80 percent of these 287 agreements are
in the South.
[The information referred to follows:]
__________
Mr. King. Madam Chair, could I ask a short deference,
please?
Ms. Lofgren. I would yield for a question.
Mr. King. I thank you.
What I really have is a statement that I intended to
introduce. And I wonder if I could introduce my statement into
the record, unanimous consent, on----
Ms. Lofgren. Without objection.
Mr. King. Thank you.
[The prepared statement of Mr. King follows:]
Prepared Statement of the Honorable Steve King, a Representative in
Congress from the State of Iowa, and Ranking Member, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law
Before we begin our discussion here today, I'd like to set out the
underlying federal law that governs state and local law enforcement.
The use of race or national origin in law enforcement is only
strictly prohibited when race or national origin is the sole criteria
for the law enforcement action, based on an invidious purpose. As the
Supreme Court made clear in the 1996 case of Bush v. Vera, mere
``racial disproportions in the level of [law enforcement activity] for
a particular crime may be unobjectionable if they merely reflect racial
disproportions in the commission of that crime.''
To give an example, the Supreme Court has upheld a program in which
vehicles passing through a permanent checkpoint 66 miles from the
Mexican border were visually screened by Border Patrol agents for
occupants who appeared to be of Mexican national origin. In that case,
United States v. Martinez-Fuerte, the Court held that it was
constitutional for the border patrol--after routinely stopping or
slowing automobiles at a permanent checkpoint--to refer motorists
selectively to a secondary inspection area for questions about
citizenship and immigration status. The Court held that there was no
constitutional violation even if such referrals were made largely on
basis of apparent Mexican ancestry.
The Supreme Court later made clear, in the 1981 case of Haig v.
Agee, that such holdings are appropriate given that ``It is obvious and
unarguable that no governmental interest is more compelling than the
security of the Nation.''
Even beyond the context of border security, law enforcement has
broad discretion to reasonably rely on the factors of race or national
origin, as long as such criteria are not the sole criteria that
invidiously motivates action by law enforcement.
Indeed, under the Department of Justice's own official guidelines
on the use of race by law enforcement, it is made clear that:
in conducting an ongoing investigation into a specific criminal
organization whose membership has been identified as being
overwhelmingly of one ethnicity, law enforcement should not be
expected to disregard such facts in pursuing investigative
leads into the organization's activities.
The Department of Justice guidelines further state that:
Federal authorities may also use reliable, locally relevant
information linking persons of a certain race or ethnicity to a
particular incident, unlawful scheme, or ongoing criminal
enterprise [including a gang]--even absent a description of any
particular individual suspect.
Of course, law enforcement at its discretion can impose on itself
restrictions beyond what is prohibited by constitutional law
precedents. But those decisions should be made by state and local law
enforcement working to protect citizens in local jurisdictions--not by
Members of Congress thousands of miles away in Washington, D.C.
So what are the effects of these policies? I would suggest that
when used correctly by law enforcement officials, the effect is safer
communities. And safer communities are also created when state and
local law enforcement officials help to enforce federal immigration
law.
That is made even more clear when we look at examples in which
state or local law enforcement has failed to do so. For instance, four
of the 9/11 hijackers had documented contact with state or local law
enforcement officers after entering the United States. All four were
pulled over for traffic infractions at one point in the months before
September 2001. Unfortunately none were reported to federal immigration
officials despite their violations of federal immigration laws. We all
know the devastating results of the hijackers' malicious activities.
And Operation Community Shield is an on-going example of the
benefits of coordination among federal, state and local law enforcement
entities. It is a law enforcement program in which federal state and
local officials work together to conduct criminal investigations and
other law enforcement operations against violent criminal alien street
gangs.
According to ICE, since Operation Community Shield's inception,
17,655 street gang members and associates, from over 700 different
gangs have been arrested and are no longer on America's streets. One
hundred-seven of those arrested were gang leaders and more than 2,555
of those arrested had violent criminal histories.
By virtue of their sheer numbers, the over 740,000 state and local
law enforcement personnel, come into contact with many more people on
any given day, than do federal law enforcement officials. This contact
can result, and has resulted, in the arrest of illegal immigrants who
would otherwise be free to commit future crimes. Remember no crime by
illegal immigrants would ever occur if they were removed from the
United States before they could strike. These are truly ``senseless''
crimes.
Sadly, the state and local law enforcement officers who came into
contact with Alfredo Ramos prior to March 30, 2007, were prohibited by
their jurisdictions from coordinating with federal immigration
officials. I say sadly, since on that day, Ramos killed 16 year old
Tessa Tranchant and her 17 year old friend Alison Kunhardt. We will
hear shortly about the devastating effects of lack of law enforcement
coordination from Tessa's father who is here today. Tessa, Alison,
their families and the other victims of criminal aliens are the ones
whose country failed to protect them. They are the true victims.
If I have to choose between political correctness and ensuring the
safety of the American people, I will chose the American people in a
heartbeat.
__________
Ms. Lofgren. This hearing is about at an end. And I would
like to thank all of the witnesses who appeared and all of the
individuals who have watched. I think that we have learned, at
least I feel that I have learned, some things today.
And I do not believe that this is the end of our inquiry
into this matter. We do know that the Secretary of Homeland
Security has initiated a review of this program. And I think,
based on the testimony today, that is highly appropriate.
So, at this point, I will--you know, a lot of people don't
realize you are here on your own time. We do appreciate your
service to the Congress and to the country through your
testimony.
And this hearing is now adjourned.
[Whereupon, at 3:24 p.m., the Subcommittees were
adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
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*The security camera footage from October 16, 2008 referenced in item 2
above is on file with the Subcommittees.