Good afternoon and please come to order. Welcome to this hearing of the United States Senate Committee on the Judiciary. I welcome especially our witnesses and look forward to their testimony today.
America earned its place in the world because of the immigrants that have come before us, bringing their culture, bringing their passion, and bringing their ideas to our shores.
When I ask Americans what they expect in our immigration system, they say they want a system that keeps us safe from foreign threats, terrorism, and from dangerous individuals. They say they want a system that protects the American workforce and grows our economy. They also want a system that is fair, transparent, and reflects our fundamental values.
I think our immigration system does a reasonably good job of enforcement. We certainly spend enough – $15.7 billion in the last fiscal year alone, as compared to $11.3 billion on all other federal law enforcement combined, including FBI, ATF, DEA, and the U.S. Marshal Service. There are 32,000 immigrants in detention right now in over 250 facilities, and there will be about 400,000 in detention throughout the course of a year. ICE deported about the same number last year, and that number has been steadily climbing and now stands at about double the number of removals in 2001.
But when I tell people that our immigration system doesn’t allow immigration judges to consider circumstances – like risk of flight, ties to the community and dependent U.S. citizen children – they don’t think that is consistent with our national values. And yet, immigrants in detention are denied any opportunity to make these arguments in 60% of the cases. And they are surprised to learn that 23% of those deported have U.S. citizen children, who must face either a childhood without a parent or effective deportation themselves.
Those who are entitled to bond must wait weeks for an opportunity to present their case. Our “civil” detention system is geared toward maintaining a minimum number of detainees rather than ensuring the safety of our community.
Longtime legal permanent residents, with a U.S. family, a history of steady employment, and who have even served honorably in the armed forces, can be and are deported for any of a litany of relatively minor offenses that qualify as aggravated felonies under the immigration code.
Immigrants, even children and those with mental disabilities, lack not just the right to appointed counsel, but also the ability to obtain documents from the government that may be necessary to prove their cases. Even for immigrants entitled to relief under the law, the deck is stacked against them.
While our Constitution prohibits ex post facto criminal laws, our immigration law does not respect this general principle of fairness. Under 1996 revisions to the immigration code, the list of crimes and activities requiring mandatory deportation was expanded and given retroactive effect. As a result, the law now requires mandatory deportation for decades-old, non-violent offenses such as petty theft, simple drug possession, or failures to appear, all of which were not grounds for deportation before 1996.
We are a nation of immigrants, but our immigration law is inconsistent with America’s values. Our immigration system exacts a high cost on families, on civil liberties, and on human dignity. This cost is unnecessary, unwarranted, and unfair.
At $163 per day per bed, our current immigration detention system is also enormously expensive to maintain. It could be cheaper while also better serving both our national security and our national commitment to civil rights. To cite just one example, the Legal Orientation Program, which provides some immigrants with a basic overview of their legal rights, costs just $70 per participant. Armed with knowledge of their rights and, in many cases, their ineligibility for any form of immigration relief, participants in the program spent 6-12 fewer days in detention. Those who have a right to remain are able to make their case, and those who understand that they have no right to be present leave sooner. According to the Department of Justice, these combined effects resulted in a $17.8 million savings last year alone.
I understand that there are dangerous individuals in this country who should not be here, and I strongly support the work of the brave men and women who serve in ICE and CBP to find these individuals and take them off our streets.
My concern is that we must afford a minimum level of due process, consistent with our values, to those people who find themselves in an immigration system that looks in many ways like a criminal proceeding.
Detention and deportation decisions should be made in the public interest and subject to independent review. Where appropriate for immigrants with no history of violence, less restrictive alternatives to detention ought to be used to guarantee enforcement of the court’s orders. Immigrants ought to be advised of their legal rights and have meaningful access to discovery. Where necessary to meaningfully participate in the process, particularly in cases involving children and those with mental disabilities, counsel ought to be provided.
These are not exceptional goals, but they do not describe our current system.
Under our system, Hiu Lui Ng, a Chinese national, was detained by ICE when he appeared for his green card interview with his U.S. citizen wife and their two U.S. citizen children. Even though Mr. Ng had a good job as a computer programmer, and he was eligible for a green card based on a petition filed by his wife, ICE held him in detention for a past in-absentia removal order for over a year. While in custody, Mr. Ng died due to lack of medical care.
Under our system, R.C., an Irish native who came to the United States as a lawful permanent resident in 1955 as a five year old, was detained by ICE for 10 months just a few years ago while he fought, and won, cancellation of removal for a single misdemeanor drug offense in 2006.
Comprehensive immigration reform cannot be truly “comprehensive,” if it does not address serious current flaws that deny immigrants minimum due process rights that are consistent with America’s values.
It is worth noting that we are only a few days away from the start of Passover and Easter, when I and many of my colleagues here in the Senate will take time to reflect on our faith and religious traditions.
The book of Exodus, chapter 23, verse 9 tells us: “you shall not oppress the stranger; you know how a stranger feels, for you lived as strangers in the land of Egypt.” Pope Francis was equally clear in his inaugural homily, exhorting leaders of all nations to be protectors of the most vulnerable.
I want to thank Chairman Leahy for allowing me to hold this hearing today, as well as Ranking Member Grassley for his participation. I also welcome our five witnesses today, who bring a broad range of experiences with the U.S. immigration system. I look forward to their testimony and answers to our questions.