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DETENTION OF ALIENS IN BUREAU OF
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE .
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
DETENTION OF ALIENS IN BUREAU OF PRISON FACILITIES
JUNE 23, 1982
Serial No. 81
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
16-1190 WASHIINGTON : 1983
I ~ I
COMMITTEE ON THE JUDICIARY
PETER W. RODINO, JR., New Jersey, Chairman
JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
JOHN CONYERS, JR., Michigan
JOHN F. SEIBERLING, Ohio
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
SAM B. HALL, JR., Texas
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
BILLY LEE EVANS, Georgia
DAN GLICKMAN, Kansas
HAROLD WASHINGTON, Illinois
BARNEY FRANK, Massachusetts
GEO. W. CROCKETT, JR., Michigan
ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
HAMILTON FISH, JR., New York
M. CALDWELL BUTLER, Virginia
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio
HAROLD S. SAWYER, Michigan
DAN LUNGREN, California
F. JAMES SENSENBRENNER, JR.,
BILL McCOLLUM, Florida
E. CLAY SHAW, JR., Florida
ALAN A. PARKER, General Counsel
GARNER J. CLINE, Staff Director
FRANKLIN G. POLK, Associate Counsel
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE
ROBERT W. KASTENMEIER, Wisconsin, Chairman
JACK BROOKS, Texas TOM RAILSBACK, Illinois
PATRICIA SCHROEDER, Colorado HAROLD S. SAWYER, Michigan
BARNEY FRANK, Massachusetts M. CALDWELL BUTLER, Virginia
BRUCE A. LEHMAN, Chief Counsel
TIMOTHY A. BOGGs, Professional Staff Member
GAIL HIGGINS FOGARTY, Counsel
DAVID W. BEIER, Assistant Counsel
THOMAS E. MOONEY, Associate Counsel
JOSEPH V. WOLFE, Associate Counsel
Carlson, Norman A., Director, Federal Bureau of Prisons.................................... 2
Ennis, Edward J., Esq., member, board of directors, American Civil Liberties
U n io n .............................................................................................................................. 3 5
P prepared state ent ............................................................................................... 41
Giuliani, Rudolph W., Associate Attorney General, Department of Justice........ 2
P prepared state ent ................................................................................................. 7
Helton, Arthur, on behalf of the Lawyers Committee for International
H u m an R igh ts............................................................................................................... 56
P prepared state ent ............................................................................................... 60
Nelson, Alan, Commissioner, Immigration and Naturalization Service.............. 2
APPENDIX 1-LEGISLATIVE AND BUDGET MATERIALS
Legislative history, H .R. 6863 (97th Congress)......................................................... 92
Excerpt, communication from the President of the United States concerning
supplemental appropriations, House Document No. 97-185 (97th Congress,
2d session), dated M ay 25, 1982.............................................................................. 93
U.S. Department of Justice, supplemental estimate, fiscal year 1982, concern-
ing detention of illegal aliens in the Federal prison system, June 1982 ......... 95
Excerpt, Senate Report No. 97-516, 97th Congress, 2d session (to accompany
H.R. 6863), supplemental appropriations bill, 1982, August 3, 1982................ 98
Excerpt, House Report No. 97-747, 97th Congress, 2d session, conference
report (to accompany H.R. 6863), making supplemental appropriations for
fiscal year 1982 ending September 30, 1982, and for other purposes, August
13 19 8 2 ........................................................................................................................... 9 9
Excerpt, Public Law 97-257 (Sept. 10, 1982), Supplemental Appropriations
A ct, 1982 ....................................................................................................................... 99
APPENDIX 2-DEPARTMENT OF JUSTICE MATERIALS AND CORRESPONDENCE
Immigration and Naturalization Service, Standards for Detention, August 1,
19 8 0 ................................................................................................................................. 10 0
Rodino, Hon. Peter W., chairman, Committee on the Judiciary, letter dated
November 21, 1981, to Hon. William French Smith, Attorney General,
D epartm ent of Justice................................................................................................. 176
Smith, William French, Attorney General, Department of Justice, letter dated
December 17, 1981, to Hon. Peter W Rodino, Jr................................................ 179
Giuliani, Hon. Rudolph W., Associate Attorney General, Department of Jus-
tice, letter dated March 31, 1982, to Hon. Romano L. Mazzoli, chairman,
Subcommittee on Immigration, Refugees and International Law................... 184
Immigration and Naturalization Service, Haitians in Detention Facilities,
A p ril 3 0, 1982 ................................................................................................................ 187
Bevilacqua, Rev. Anthony J., chairman, National Emergency Coalition for
Haitian Refugees, letter dated May 7, 1982, to Hon. William French Smith,
A attorney G general. ......................................................................... .......................... 188
Smith, William French, Attorney General, memorandum dated June 11, 1982,
to Alan Nelson, Commissioner, Immigration and Naturalization Service ....... 195
Director Tells El Reno Leaders About Proposed Detention Centers (article),
dated June 14, 1982, Monday Morning Highlights, Bureau of Prisons, De-
partm en t of J ustice............................................................................. ...................... 199
Attorney General Announces Parole Hearings for Haitians (article), dated
June 21, 1982, Monday Morning Highlights, Bureau of Prisons, Department
o f J u stice ........................................................................................................................ 20 0
Carlson, Norman A., Director, Federal Prison System, Department of Justice,
; letter dated June 22, 1982, to Hon. Robert W. Kastenmeier............................ 201
Nelson, Alan C., Commissioner, Immigration and Naturalization Service,
letter dated June 25, 1982, to Hon. Robert W. Kastenmeier............................ 202
Interim Rule on Detention and Parole of Inadmissible Aliens (excerpt from
Federal Register, dated Friday, July 9, 1982, vol. 47, No. 132, pp. 30044-
30046), Hon. Alan C. Nelson, Commissioner, Immigration and Naturaliza-
tion S erv ice .................................................................................................................... 205
Nelson, Alan C., Commissioner, Immigration and Naturalization Service,
letter dated August 18, 1982, to Hon. Robert W. Kastenmeier........................ 208
APPENDIX 3-MATERIALS FROM MEMBERS OF CONGRESS
Butler, Hon. M. Caldwell, a U.S. Representative from the State of Virginia,
letter with attachments dated July 16, 1982, to Hon. Peter W. Rodino, Jr...... 210
Chisholm, Hon. Shirley, a U.S. Representative from the State of New York,
letter dated April 2, 1982, to Hon. Robert W. Kastenmeier ............................. 215
Daniel, Hon. Robert W., Jr., a U.S. Representative from the State of Virginia,
letter dated June 24, 1982, to Hon. M. Caldwell Butler .................................... 216
D'Amato, Hon. Alfonse M., a U.S. Senator from the State of New York, letter
dated M ay 25, 1982 ................................................................................................... 219
Fauntroy, Hon. Walter E., chairman, Congressional Black Caucus, letter
dated April 5, 1982, to Hon. Robert W. Kastenmeier ........................................ 221
Excerpt from Congressional Record, dated April 21, 1982............................ 222
Kastenmeier, Hon. Robert W.:
Memorandum to members of the Subcommittee on Courts, Civil Liberties,
and the Administration of Justice, re: Detention of Aliens in Bureau of
Prisons Facilities Pending Resolution of Immigration Matters, dated
June 21, 1982, with attachm ents.................................................................... 223
Letter dated July 14, 1982, to Hon. Neal Smith, chairman, Subcommittee
on Commerce, Justice, State, and Judiciary ................................................ 242
Letter dated July 27, 1982, to Hon. Neal Smith, chairman, Subcommittee
on Commerce, Justice, State, and Judiciary ................................................ 244
Letter dated August 2, 1982, to lion. Robert W. Daniel, Jr.......................... 246
Long, Hon. Russell B., U.S. Senator; Johnston, Hon. J. Bennett, U.S. Senator;
and Boggs, Hon. Lindy (Mrs. Hale); joint letter dated May 26, 1982, to Hon.
W illiam French Sm ith, Attorney General ........................................................... 247
Mazzoli, Hon. Romano L., chairman, Subcommittee on Immigration, Refugees,
and International Law:
Press release dated June 16, 1982...................................... ............................. 248
Letter to Hon. Neal Smith, chairman, Subcommittee on Commerce, Jus-
tice, State and Judiciary, dated July 23, 1982 ............................................. 249
Ottinger, Hon. Richard L., a U.S. Representative from the State of New York,
testimony before the House Judiciary Committee's Subcommittee on
Courts, Civil Liberties, and the Administration of Justice (June 23, 1982)
and attachments of letter dated May 21, 1982, from Representative Ottinger
and 55 Members of Congress to Attorney General Smith.............................. 252
Smith, Hon. Neal, chairman, Subcommittee on Commerce, Justice, State, and
Judiciary and Related Agencies:
Letter to Hon. Robert W. Kastenmeier, dated July 21, 1982..................... 259
Letter to Hon. Robert W. Kastenmeier, dated August 17, 1982................... 260
Warner, Hon. John W., Jr., U.S. Senator; Byrd, Hon. Harry F., Jr., U.S.
Senator; and Daniel, Hon. Robert W., Jr., U.S. Representative; joint letter
dated July 26, 1982, to Hon. William French Smith, Attorney General ........ 261
APPENDIX 4-GENERAL CORRESPONDENCE
Bevilacqua, Rev. Anthony J., chairman, Emergency Coalition for Haitian
Refugees, letters to Hon. Robert W. Kastenmeier:
A p ril 6, 1982 ............................................................................................................. 265
M a y 10 198 2 ............................................................................................................. 267
Gallagher, Sister Rose, S.N.J.M., Office of Appalachian Ministry II, Catholic
Diocese of Richmond, Va., letter with attachments dated June 15, 1982, to
H on. R obert W K astenm eier.......................................................... ..................... 268
Haiti, Embassy of (Washington, D.C.), memorandum on the Haitian refugee
issue, dated A pril 30, 1982....................................................................................... 275
Hooper, Michael S., director of Haiti project, Lawyers Committee for Interna-
tional Human Rights, prepared statement dated December 12, 1981............. 284
House of Representatives, State of Illinois (82d General Assembly), resolution
on Haitian refugees reprinted in Congressional Record, August 17, 1982, pp.
5 10 66-5 10 67 ................................................................................................................... 294
Kiehne, Frank C., interim director, Church World Service Immigration and
Refugee Program, prepared statement dated April 21, 1982............................ 295
Kine, John G., Jr., county administrator, Prince George County, Va., letter
with attachments dated June 28, 1982, to Hon. Robert W. Kastenmeier ......... 297
Legislature of the State of Louisiana, concurrent resolution adopted and sent
to the House Committee on the Judiciary, dated August 4, 1982.................... 302
Mulligan, Rev. Charles F., diocese of Rochester, N.Y., letter dated April 23,
1982, to H on. Robert W K astenm eier...................................................................... 303
Morris, Horace W., executive director, New York Urban League, letters to
Hon. Robert W. Kastenmeier:
M ay 28, 1982........................................................................................................ 304
June 24, 1982....................................................................................................... 305
Myers, J. Michael, advocacy coordinator, Church World Service, letter dated
June 22, 1982, to Hon. Robert W. Kastenmeier .................................................. 307
Shapiro, Steven R., staff counsel, New York Civil Liberties Union, letter
dated August 10, 1982, to Gail Fogarty................................................................. 308
Shattuck, John, director, and Wade Henderson, legislative counsel, ACLU
Washington office, joint letter with attachments dated March 25, 1982, to
H on. Robert W K astenm eier.................................................................................. 309
The Association of the Bar of the City of New York, Committee on Civil
Rights, news release and report, "Treatment of Haitian Refugees by the
INS of the Department of Justice: The Need for Reform," dated June 24,
1 9 8 2 ................................................................................................................................. 3 1 5
Walsh, Jack, El Reno, Okla., letter with attactment dated June 24, 1982, to
H on. R obert W K astenm eier.................................................................................... 367
Walter, Mrs. Ingrid, director, Lutheran Immigration and Refugee Service,
letter dated April 27, 1982, to Hon. Robert W. Kastenmeier ........................... 369
APPENDIX 5-GENERAL INFORMATION ON ALIEN DETENTION INCLUDING MEDIA
Refugees or Prisoners? (article), Newsweek, February 1, 1982............................ 370
Release the Haitians (editorial), New York Times, April 19, 1982...................... 376
In Prison Without a Trial (article), Washington Post, May 3, 1982.................... 377
Refugee Groups Deplore Haitian Centers (article), Los Angeles Times, May 26,
1 9 8 2 ................................................................................................................................. 3 8 1
Judge Hears Arguments on the Release of Haitians (article), New York
Tim es, dated June 24, 1982 .............................................. ..................................... 382
"Deceitful New Gambit" in Haitian Refugee Policy (letter to the editor), New
Y ork Tim es, dated June 25, 1982 .............................................................................. 383
Judge Orders U.S. To Release Haitian Exiles (article), Washington Post, dated
J u n e 30 1982 ................................................................................................................ 384
U.S. Won't Ask High Court for Stay of Haitians' Release (article), New York
T im es, dated July 15, 1982 ...................................................................................... 386
U.S. Department of Health and Human Services, Statistics on Mental Health
Problems at Krome Facility (Florida), August 15, 1982 (attachments 1 and
2 ) .......................................................................... ........................................................... 3 8 7
As Others Go Free, 50 Haitians Still Detained Feel Only Despair (article),
W ashington Post, dated August 25, 1982)........................... ............................. 390
Haitians, Held in N.Y., To Be Freed (article), Washington Post, dated Septem-
b er 23 1982 ................................................................................................................... 39 1
Court Order Cuts Haitian Total in Miami Detention Site to two (article), New
York Tim es, dated October 13, 1982................................................... ................ 392
DETENTION OF ALIENS IN BUREAU OF PRISON
WEDNESDAY, JUNE 23, 1982
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES
AND THE ADMINISTRATION OF JUSTICE
OF THE COMMITTEE ON THE JUDICIARY,
The subcommittee met, pursuant to call, at 10:20 a.m., in room
2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier
(chairman of the subcommittee) presiding.
Present: Representatives Kastenmeier, Sawyer, and Shaw.
Staff present: Gail Higgins Fogarty, counsel; Thomas E. Mooney,
and Joseph V. Wolfe, associate counsel; and Audrey K. Marcus,
Mr. KASTENMEIER. The subcommittee will come to order.
Today the Subcommittee on Courts, Civil Liberties and the Ad-
ministration of Justice will hold the first day of hearings on the
subject of detention of aliens, particularly Haitians, in Bureau of
The impetus for this hearing is the fact that the Reagan adminis-
tration has requested $35 million for the Bureau of Prisons to build
and manage two 1,000-bed detention facilities. These facilities are
planned for El Reno, Okla., and Petersburg, Va., two sites where
Federal prisons already exist.
Prior to May 25, 1982, the administration was seeking money to
have the Immigration and Naturalization Service build and
manage such facilities. But on May 25 the President sent a commu-
nication which included a supplemental request to have the
Bureau of Prisons undertake the construction and management.
In addition, since last summer, when the detention policy was
changed, the administration asked the Bureau of Prisons to assume
an active role in detaining approximately 600 Haitians who are
awaiting resolution of immigration matters, including asylum
claims. Another 1,400 are in INS camps.
None of these Haitians, as far as this subcommittee knows, are
considered dangerous, nor do they have criminal backgrounds, such
as certain of the Cubans now detained in the Atlanta prison. Yet,
these Haitians are being placed primarily in medium security pris-
ons, some in very remote areas of the country, such as Ray Brook,
N.Y., and Alderson, W. Va.
I seriously question the need to incarcerate Haitians or any
other immigrant group pending resolution of their immigration
status, particularly where claims for political asylum are made.
However, community-based programs such as placement with
volunteer agencies and relatives, which assure the aliens will
return for hearings, are said to be available. The overburdened
criminal justice system, it would seem, does not need to have the
nonviolent asylum seekers crowding its prisons, nor do taxpayers,
faced with a failing economy, need to be paying $37 million this
year to detain such asylum seekers, nor to pay another $35 million
to build new prisons for noncriminal aliens.
From 1954 until last summer, the United States followed a gen-
eral policy of releasing aliens pending immigration matters, unless
they were threats to national security or likely to abscond. This
was, and still is, a wise policy.
The administration announced on June 14, 1982, that it may, in
fact, release some Haitians, perhaps 200, for a period of time, per-
haps only for 30 days, pending determinations that they are exclud-
able. Although that change is a step in the right direction, at least
in terms of detention, I am not sure that it goes far enough.
The Federal courts have been critical of the detention policy, one
declaring it null and void for procedural improprieties, and another
declaring that it was racially discriminatory. The present detention
practices must be examined in the light of these and other court
rulings, requiring fair immigration procedures and access to justice
to counsel and representatives.
Today's hearings will focus on the problems which aliens and the
Bureau of Prisons have in relation to this detention policy and the
plans to build new prisons for aliens. I would like to note that we
may, indeed, in due course, have the chairman of the Judiciary
Subcommittee on Immigration, Refugees, and International Law,
Mr. Mazzoli, and possibly other members other than the subcom-
mittee present this morning.
The Chair will note that primarily the general immigration na-
tionality policy is obviously in the Subcommittee on Immigration,
Refugees, and International Law, which has also had previously
certain hearings with respect to these matters.
Mr. KASTENMEIER. Our first witness today will be Associate At-
torney General Rudolph W. Giuliani, accompanied by Norman H.
Carlson, Director of the Bureau of Prisons, and Alan Nelson, Com-
missioner of the Immigration and Naturalization Service. I am cer-
tainly pleased that you could participate this morning. We also will
have, following these distinguished witnesses, two others constitut-
ing a panel with further comments.
In any event, I would like to greet all three of you. Certainly,
Mr. Giuliani and Mr. Carlson have been before this subcommittee
many times before.
Mr. Giuliani, you have a prepared statement and perhaps you
would like to proceed from it, or in any other way you care to.
TESTIMONY OF RUDOLPH W. GIULIANI, ASSOCIATE ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED BY
NORMAN A. CARLSON, DIRECTOR, FEDERAL BUREAU OF PRIS-
ONS; AND ALAN NELSON, COMMISSIONER, IMMIGRATION AND
Mr. GIULIANI. Thank you, Mr. Chairman. I will summarize it.
Mr. Chairman and members of the committee, I am pleased to
appear before you to discuss the supplemental fiscal year 1982
budget request for $35 million to construct two new facilities as
permanent sites for the detention of aliens who are awaiting immi-
As currently envisioned, these facilities will be administered by
the Bureau of Prisons in conjunction with the Immigration and
Naturalization Service. The new facilities will be built adjacent to
existing Bureau of Prison facilities on land already owned by the
Federal Government in Petersburg, Va., and El Reno, Okla. Pri-
mary administrative responsibility will rest with the Bureau of
Prisons which has a great deal of experience in the field of deten-
This additional space is urgently needed if we are to be able to
adequately enforce our immigration laws. The total usable capacity
of permanent INS facilities is currently 1,839.
To help relieve the space crisis in INS facilities, the Department
of Justice has made available bedspace in Bureau of Prisons facili-
ties for INS detainees. We believe that such action, although neces-
sary in the short term, is undesirable as a general policy. This use
of Bureau of Prisons space puts additional strain on our already
taxed Federal prisons. Currently, the Bureau of Prisons is housing
2,000 INS detainees. At this time, the total population in Bureau of
Prisons facilities is nearly 4,000 inmates over capacity.
Contract space in State and local detention facilities has also
been utilized to fill INS needs, but the increase in population pres-
sure on all such facilities has begun to limit greatly the ability of
INS to contract for appropriate space.
The capacities of the INS special processing centers and contract
space available have largely dictated the level at which the INS ap-
prehension program, both at the borders and in the interior, can
function. Those capacities have been inadequate. In some areas,
this has resulted in less use of the INS enforcement branches. In
others, it has resulted in relaxed policies of bond or release on per-
sonal recognizance. As a result, enforcement of final orders of de-
portation remains low due to the failure of many aliens to appear
for deportation. This situation can no longer be tolerated.'
Strain on existing facilities has also resulted from increased ap-
prehensions over the last decade of other than Mexican nationals
whose return is delayed pending procurement of travel documents.
In addition, new emphasis on complicated alien smuggling cases
has increased the need for detention space and the length of the
detention period for the aliens involved. INS has been called upon
to provide detention space for an ever-larger number of aliens held
by the U.S. Marshals Service for criminal prosecution or as materi-
al witnesses in alien smuggling cases.
Available space has proven inadequate for current needs. The
recent sudden mass influxes of alien groups which we have experi-
enced has evidenced this inadequacy, as has the unanticipated
length of time Haitian undocumented aliens have been detained.
These special problems, however, have merely highlighted our criti-
cal lack of space; they have not created it.
In fiscal year 1981, 265,000 aliens were detained by INS for vary-
ing lengths of time. It is clear that the current 1,839 person capac-
ity of the SPC's leaves no margin for flexibility. The system is
unable to cope with any new alien influxes, any delays in process-
ing, and any increases in apprehensions. Yet all three of these cir-
cumstances have occurred in the recent past and can be expected
As noted in the report of the Select Commission on Immigration
and Refugee Policy, increased pressure for migration to the United
States from underdeveloped countries can be anticipated. In addi-
tion to the general increasing flow of illegal aliens, many countries
have experienced political instability or distressed economic cir-
cumstances that result in specific influxes of migrants entering or
remaining in the United States.
Additionally, over the past 5 years INS has seen an increase in
the average period of stay of its detainees. The Haitian situation is
the clearest example of this phenomenon. It is not, however, the
only example. Since the passage of the Refugee Act of 1980, aliens
of many nationalities have been applying for political asylum with
very increasing frequency. The processing time is thus substantial-
We must anticipate as well an increase in apprehensions in the
future. There are currently an estimated 3.5 to 6 million illegal
aliens in the United States. Last July, President Reagan an-
nounced a comprehensive series of initiatives, including legislative
reforms, to deal with this problem and permit Federal authorities
to regain control of our Nation's borders. At that time, Attorney
General William French Smith stressed the necessity of enforcing
the mandate of the Immigration and Nationality Act to detain ex-
cludable aliens to insure their processing under our laws. Deport-
able aliens must also be detained where necessary to insure ap-
As a part of the administration's comprehensive program, addi-
tional resources were requested to strengthen and increase INS en-
forcement activities. Over $44 million of that request already has
been approved by Congress. Some of this money was appropriated
for use in current detention efforts. The rest will permit an in-
crease in and restoration of INS enforcement positions and equip-
At the current level of effort, INS estimates that over 1 million
illegal aliens will be apprehended in fiscal year 1984, an increase of
90,000 above the anticipated fiscal year 1982 apprehension level.
The additional positions and restoration of work years we have re-
ceived will permit us to increase further the level of apprehensions.
Enforcement efforts, however, must be given adequate support. We
cannot expect new enforcement initiatives to succeed if apprehen-
sions do not result in deportations. A lack of detention space makes
such a result likely.
Thus, the administration's immigration program includes a re-
quest to Congress for $35 million for new immigration detention
space. This request is an integral piece of the program, a program
of interrelated and interdependent parts.
The need for additional detention space is not one that has
arisen overnight. Together with the problem of illegal immigration,
it has been permitted to grow for years. INS apprehensions show
an upward trend over the last several decades. The level of deten-
tion space has not kept pace. For example, INS had a detention ca-
pacity of 858 spaces in 1968. That capacity has slightly more than
doubled to approximately 1,800 spaces in 1982. During that same
time period, however, the number of illegal aliens apprehended has
more than quadrupled from 212,000 in 1968 to an estimated 930,000
We are hopeful that the reform legislation now under considera-
tion by Congress will help to bring the immigration problem under
control. But success cannot be expected overnight. And it cannot be
expected at all if the tools needed to tackle the problem are not
available. Detention facilities are one such tool. Increased deten-
tion capability, which helps to insure processing and departure,
would greatly increase the number of illegal aliens expelled each
The two, 1,000-bed detention facilities for which we are request-
ing construction funds can be used to house several categories of
aliens, particularly those requiring longer term detention. This
would free much of the currently used Bureau of Prison space and
return existing SPC and contract detention space to their original
purpose of short-term processing and detention of aliens.
The Petersburg, Va., facility would address INS needs for capac-
ity in the Northeastern States and along the Atlantic seaboard.
The Brooklyn SPC would be freed from the burden of handling
longer term cases and increased enforcement efforts could be un-
dertaken. INS districts in the Eastern States would have a longer
term facility for material witnesses in alien smuggling cases and
other aliens involved in complicated proceedings.
The El Reno, Okla., facility would afford needed space in the
Southwest, the area where 90 percent of INS apprehensions are
made. Such contract jail space as may be available in the Northern
and Middle West States would be released for short-term detention
and the Service could maintain stricter policies of bond and release
on personal recognizance. The southwestern border's SPC's could
be utilized primarily for normal border apprehensions as longer
term cases were shifted to the El Reno facility allowing INS to
maximize its enforcement efforts in the southern border area.
Both locations are well suited for INS needs. They would provide
space where needed in the Southwest and Northeast. Both sides
are within reasonable proximity to major cities and needed trans-
In addition, both locations are at the sites of current Bureau of
Prisons facilities and sufficient Federal land is available at these
locations for the proposed facilities. This will save the cost of land
Construction schedules, in addition, will be expedited because
land purchasing time will not be required. Moreover, management
by the Bureau of Prisons of two facilities at the same location will
result in lower operating costs and long-term savings through con-
solidation of some administrative staff and functions.
The cost and operational advantages resulting from colocation
and management with existing facilities is only one of the reasons
why we have determined that the Bureau of Prisons should have
primary responsibility for construction and management of these
The Bureau of Prisons is the Attorney General's detention
expert. It is experienced in both short- and long- term detention,
while the INS experience, until recently, has been with short- term
cases only. BOP has, in addition, been holding INS detainees for a
number of years and is more familiar with their needs than the
contractors to which INS might otherwise have to turn. Indeed,
INS has increasingly sought Bureau of Prisons assistance in those
INS facilities which house longer term detainees.
We believe that this arrangement represents the most cost effec-
tive and operationally sound use of Department of Justice re-
sources. The facilities will be immigration processing centers
rather than correctional facilities, but INS and its detainees will
benefit from the Bureau of Prisons' experience, knowledge, and re-
sources in the detention field, which includes application of a wide
range of recreational, educational, and other programs. The public
will benefit from the cost savings resulting from the joint location.
The firm enforcement policy embraced by this administration, as
well as that anticipated by pending legislation, requires additional
Federal detention space for aliens. The Department projects for the
foreseeable future a clear need for detention space for aliens in-
volved in immigration and criminal proceedings. Current space is
insufficient for current needs. Space in the Bureau of Prisons inter-
im and contract facilities is expected to decrease in the immediate
future, and new influxes and increased apprehensions can and
must be anticipated. Approval of this supplemental funding request
is needed as soon as possible in order to begin contracting for con-
struction. Assuming funds are made available in July 1982, site
work could commence shortly thereafter and construction could be
completed by the end of July 1985.
Thank you very much, Mr. Chairman.
[The statement of Mr. Giuliani follows:]
PREPARED STATEMENT OF RUDOLPH W. GIULIANI
Mr. Chairman and Members of the Committee,
I am pleased to appear before you to discuss the supple-
mental FY 1982 budget request for $35,000,000 to construct two
new facilities as permanent sites for the detention of aliens
who are awaiting immigration proceedings.
As currently envisioned, these facilities will be admin-
istered by the Bureau of Prisons (BOP) in conjunction with the
Immigration and Naturalization Service (INS). Both are agencies
of the Department of Justice. The new facilities will be built
adjacent to existing BOP facilities on land already owned by the
federal government in Petersburg, Virginia, and El Reno, Oklahoma.
Primary administrative responsibility will rest with the BOP
which has a great deal of experience in the field of detention.
This additional space is urgently needed if we are to be
able adequately to enforce the immigration laws. INS currently
operates five Service Processing Centers for the processing and
detention of aliens: El Centro, California with a capacity of
500; El Paso, Texas with a capacity of 350; Port Isabel, Texas
with a 240 capacity; and Brooklyn, New York with a capacity of
224. The actual capacity of Krome North in Miami, Florida is
1,000. At this time, however, we are operating under a congres-
sional mandate to use our best efforts to keep the population
of Krome at 525 or below and we are attempting, in good faith,
to comply. Thus, the total usable capacity of permanent INS
facilities is currently 1,839.
During the past five years, each of these facilities has
operated at its full capacity, reflecting increased arrivals
and apprehensions of illegal aliens. Indeed, certain of these
facilities have been periodically forced beyond capacity, resulting
in overcrowding and inadequate conditions. In March of this
year, for example, Port Isabel, Brooklyn and Krome were over
capacity. Overcrowding has at times led to the use of temporary
facilities, which are often unsuitable and costly.
To help relieve the space crisis in INS facilities, the
Department of Justice has also made available bedspace in
Bureau of Prisons facilities for INS detainees. We believe
that such action, although necessary in the short term, is
undesirable as a general policy. While aliens who await
processing in BOP facilities are segregated from the general
inmate population, we do not believe it is advisable to house
administrative detainees in correctional facilities with those
convicted or accused of crimes. Moreover, this use of BOP space
puts additional strain on our already taxed Federal prisons.
Currently, the BOP is housing 2,000 INS detainees. At this time,
the total population in BOP facilities is nearly 4,000 inmates
Contract space in state and local detention facilities has
also been utilized to fill INS needs. But the increasing
population pressure on all such facilities has begun to limit
greatly the ability of INS to contract for appropriate space.
In Chicago, for example, INS no longer has access to the Cook
County Jail and is limited to 55 spaces in the Metropolitan
Corrections Center for its alien detainees. In the future, we
can expect this situation to worsen nationwide. In FY 1981,
such nonservice facilities handled 36% of the man-days of
detention needed by INS.
The capacities of the INS Special Processing Centers (SPCs)
and contract space available have largely dictated the level
at which the INS apprehension program, both at the borders and
in the interior, can function. Those capacities have been
inadequate. In some areas, this has resulted in less use of
the INS enforcement branches. In others, it has resulted in
relaxed policies of bond or release on personal recognizance.
As a result, enforcement of final orders of deportation remains
low due to the failure of many aliens to appear for deportation.
This situation can no longer be tolerated.
Strain on existing facilities has also resulted from
increased apprehensions over the last decade of other than
Mexican nationals whose return is delayed pending procurement of
travel documents. In addition, new emphasis on complicated
alien smuggling cases has increased the need for detention space
and the length of the detention period for the aliens involved.
INS has been called upon to provide detention space for an ever
larger number of aliens held by the U.S. Marshals Service for
criminal prosecution or as material witnesses in alien smuggling
cases. For example, in FY 1978, INS recorded 11,550 man-days of
detention for aliens in this category. By FY 1981, this figure
had increased to to 45,644 man-days.
Available space has proven inadequate for current needs. The
recent sudden mass influxes of alien groups which we have experi-
enced has evidenced this inadequacy, as has the unanticipated
length of time Haitian undocumented aliens have been detained.
These special problems, however, have merely highlighted our
critical lack of space, they have not created it.
In FY 1981, 265,000 aliens were detained by INS for varying
lengths of time. It is clear that the current 1,839 person
capacity of the SPCs leaves no margin for flexibility. The
system is unable to cope with any new alien influxes, any delays
in processing, and any increases in apprehension.
Yet all three of these circumstances have occurred in the
recent past and can be expected to recur. As noted in the report
of the Select Commission on Immigration and Refugee Policy,
increased pressure for migration to the United States from under-
developed countries can be anticipated. In addition to the
general increasing flow of illegal aliens, many countries have
experienced political instability or distressed economic circum-
stances that result in specific influxes of migrants entering or
remaining in the United States. For example, in FY 1977, INS
apprehended 2,400 Salvadorans. That number has steadily grown,
and 15,900 Salvadorans were apprehended in FY 1981. As a result,
during the first six months of this fiscal year, Salvadorans, many
of whom have filed for asylum, have accounted for approximately
30% of the space available at the Port Isabel, El Paso, and
El Centro SPCs.
Additionally over the past five years, INS has seen an
increase in the average period of stay of its detainees. The
Haitian situation is the clearest example of this phenomenon.
It is not, however, the only example. Since the passage of the
Refugee Act of 1980, aliens of many nationalities have been
applying for political asylum with increasing frequency.
Processing time is thus increased.
We must anticipate as well an increase in apprehensions in
the future. There are currently an estimated 3.5 to 6 million
illegal aliens in the United States. Last July, President Reagan
announced a comprehensive series of initiatives, including
legislative reforms, to deal with this problem and permit Federal
authorities to regain control of our Nation's borders. At that
time, Attorney General William French Smith stressed the necessity
of enforcing the mandate of the Immigration and Nationality Act
to detain excludable aliens to insure their processing under our
laws. Deportable aliens must also be detained where necessary
to insure appearance.
As a part of the Administration's comprehensive program,
additional resources were requested to strengthen and increase
INS enforcement activities. Over 44 million dollars of that
request already has been approved by Congress. Some of this
money was appropriated for use in current detention efforts. The
rest will permit'an increase in and restoration of INS enforcement
positions and equipment. At the current level of effort, INS
estimates that over one million illegal aliens will be appre-
hended in FY 1984, an increase of 90,000 above the anticipated
FY 1982 apprehension level. The additional positions and
restoration of work years we have received will permit us to
increase further the level of apprehensions. Enforcement efforts,
however, must be given adequate support. We cannot expect new
enforcement initiatives to succeed if apprehensions do not result
in deportations. A lack of detention space makes such a result
Thus, the Administration's immigration program includes a
request to Congress for $35,000,000 for new immigration detention
space. This request is an integral piece of the program -- a
program of interrelated and interdependent parts.
The need for additional detention space is not one that has
arisen overnight. Together with the problem of illegal immigration,
it has been permitted to grow for years. INS apprehensions show a
marked upward trend over the last several decades. The level of
detention space available has not kept pace. For example, INS
had a detention capacity of 858 spaces in 1968. That capacity has
slightly more than doubled to approximately 1,800 spaces in 1982.
During that same time period, however, the number of illegal
aliens apprehended has more than quadrupled from 212,000 in 1968,
to an estimated 930,000 this year.
We are hopeful that the reform legislation now under consid-
eration by Congress will help to bring the immigration problem
under control. But success cannot be expected over night. And
it cannot be expected at all if the tools needed to tackle the
problem are not available. Detention facilities are one such
tool. If we are ultimately successful, and the illegal alien
problem, and with it the need for detention space, declines at
some point in the future, alien detention facilities could be
adapted for other uses, including other detention needs.
Each 1,000 bed facility produces 365,000 man-days of deten-
tion. With the two requested facilities available, INS projects
that area control apprehensions by its investigations division
could increase by 25%, and that border patrol forces could operate
at their full potential with an increase in apprehensions of at
least 10%. In addition, a more realistic rate of detention would
be possible for the deportable aliens apprehended. Due to current
necessarily less stringent release policies, approximately 28% of
the deportable aliens apprehended are now detained. A higher
detention rate would be more sound and is preferable. Moreover,
with additional space available, efforts to locate the ever
increasing numbers of aliens who do not return for deportation
hearings could be vastly improved. In short, increased detention
capability, which helps to insure processing and departure,
would greatly increase the number of illegal aliens expelled
The two, 1,000 bed detention facilities for which we are
requesting construction funds can be used to house several
categories of aliens, particularly those requiring longer term
detention. This would free much of the currently used BOP space,
and return existing SPC and contract detention space to their
original purpose of short-term processing and detention of aliens.
The Petersburg, Virginia facility would address INS needs for
capacity in the northeastern states and along the Atlantic seaboard.
The Brooklyn SPC would be freed from the burden of handling longer
term cases and increased enforcement efforts could be undertaken.
INS districts in the eastern states would have a longer term
facility for material witnesses in smuggling cases and other aliens
involved in complicated proceedings.
The El Reno, Oklahoma facility would afford needed space in
the Southwest, the area where 90 percent of INS apprehensions are
made. Such contract jail space as may be available in the northern
and middle west states would be released for short-term detention
and the Service could maintain stricter policies of bond and
release on personal recognizance. The southwestern borders SPCs
could be utilized primarily for normal border apprehensions as
longer term cases were shifted to the El Reno facility allowing
INS to maximize its enforcement efforts in the southern border
Both locations are well-suited for INS needs. They would
provide space where needed in the southwest and northeast. Both
sites are within reasonable proximity to major cities and needed
In addition, both locations are at the sites of current BOP
facilities and sufficient federal land is available at these
locations for the proposed facilities. This will save the cost
of land acquisition. Construction schedules, in addition, will
be expedited because land purchasing time will not be required.
Moreover, management by BOP of two facilities at the same location
will result in lower operating costs and long-term savings through
consolidation of some administrative staff and functions.
The cost and operational advantages resulting from
co-location and management with existing facilities is only one
of the reasons why we have determined that BOP should have primary
responsibility for construction and management of these facilities.
BOP is the Attorney General's detention expert. It is experienced
in both short-and long-term detention, while the INS experience,
until recently, has been with short-term cases only. BOP has,
in addition, been holding INS detainees for a number of years and
is more familiar with their needs than the contractors to which
INS might otherwise have to turn. Indeed, INS has increasingly
sought BOP assistance in those INS facilities which house longer
We believe that this arrangement represents the most cost-
effective and operationally sound use of Department of Justice
resources. The facilities will be immigration processing centers
rather than correctional facilities, but INS and its detainees
will benefit from BOP's experience, knowledge and resources in
the detention field, which includes application of a wide-range
of recreational, educational and other programs. The public
will benefit from the cost savings resulting from the joint
The firm enforcement policy embraced by this Adminstration,
as well as that anticipated by pending legislation, requires
additional Federal detention space for aliens. The Department
projects for the foreseeable future a clear need for detention
space for aliens involved in immigration and criminal proceedings.
Current space is insufficient for current needs; space in BOP,
interim, and contract facilities is expected to decrease in the
immediate future; and new influxes and increased apprehensions
can be anticipated. Approval of this supplemental funding request
is needed as soon as possible in order to begin contracting for
construction. Assuming funds are made available in July 1982,
site work could commence shortly thereafter and construction
could be completed by the end of July 1985.
This completes my testimony. I would be pleased to respond to
any questions you may have.
Mr. KASTENMEIER. Thank you, Mr. Giuliani.
While the United States in some cases has detained aliens in the
past, and to some degree this is not new, I think there is always a
healthy skepticism about future plans to put people in detention
centers. I think 10 or 12 years ago, under the Internal Security
Act, this subcommittee reviewed the then extant statute which au-
thorized detention camps in America presumably for security rea-
At that time there was a great deal of apprehension. Japanese-
Americans, Jewish Americans, and at the time black Americans, as
well as many, many other Americans, were concerned about the
political implications of authorizing such detention centers.
This subcommittee initiated the repeal of it, which was, in fact,
supported by the Nixon administration and by Assistant Attorney
General Robert Mardian at that time, and I thought it was a step
forward. While this is a different purpose, we are interested in the
prospects for long-term, or short-term, particularly long-term, de-
tention of people who have not committed a crime in the normal
sense of the word.
You have stated, Mr. Giuliani, on CBS News, I am informed, on
June 12, 1982, that "prison space is at a premium; it costs the tax-
payers a great deal of money; it should be utilized for those who
are dangerous." That is a quotation.
Isn't that a contradiction, really, with a policy which locks up
nonviolent aliens at an annual cost of approximately $18,000 a
person, and is seeking to spend $35 million more to build two new
prisons for noncriminal aliens?
Mr. GIULIANI. Mr. Chairman, I don't think it is, and I think
maybe one of the things that should be emphasized is the degree of
the problem that we face in this country and the way in which we
have let it slip through inattention and through failure to enforce
We presently have an underground population of 3.5 to 6 million
illegal aliens that actually wreck havoc in certain parts of our
country. It is unfair to them, it is unfair to us, and it has to stop
somewhere and some time. For the last 10 or 15 years, no one has
really had the firmness, the courage, or the wherewithal or ability
to put an end to this problem. It has to end, and the only way it is
going to end is if we firmly but fairly enforce the law.
The Immigration and Nationality Act provides that until a
person demonstrates his clear right to be in this country, that
person shall be detained. For several years, in our view, the prior
administration failed to enforce the mandate and the wisdom of
that law, and in doing so, left this country a country that had no
ability to control its borders. That is an invitation to exploitation.
That invitation was accepted by Fidel Castro when he emptied sev-
eral of his prisons in South Florida to the tune of maybe 15,000 to
20,000 criminals who now run around our streets, an invitation
that I think we extended to him because we were unable and un-
willing to enforce our laws and to exert control by the United
States over who comes into this country and who does not come
into this country, and how you get processed to come into this
I believe we have extended an invitation to sea captains and
other profiteers in Haiti to profit off of human cargo, because we
were a country that they looked at as one where you could willy-
nilly come in-it didn't matter whether you came in here legally,
illegally, or whether you had documents or not, or whether you fol-
lowed our visa policies or not. Our borders were open and we were
unwilling or unable to exert control over our borders. We were un-
willing or unable to enforce our laws as they were written and to
enforce the underlying wisdom of those laws.
One of the areas of importance, and only one, is the area of de-
tention. When a person comes into this country without documents
and has evidenced a desire to come in above and beyond the
normal desire to come in through visas, et cetera, that person could
be coming in as a legitimate political asylee or that person could be
coming in unlawfully and illegally. The only way to make that de-
termination in an ordered society is through having a hearing. If,
in fact, you can parole that person and that person would show up
for a hearing, then we are in favor of that and we have established
an experimental program to test that. But the experience of the
past had been-and that is why we have possibly 6 million illegal
aliens-that when people were paroled, it was natural that many
of them would not show up for hearings because they would not
particularly like the result of that hearing. So we had, in essence,
assisted in losing control of our borders by an ill-thought-out, not-
very-well maintained, not-very-well policed parole program.
We were in a situation where people would come in, they would
be paroled, but when it came time to process them, they would not
show up. That is losing control of your borders. That is letting
people on the outside of this country determine when they come in,
how they come in, what criteria will be used, and not having
lawful authority exert itself over those who would like to come into
The bill that the President has recommended to the Congress
would keep legal immigration at its present limit-in fact, it would
extend it. We encourage legal immigration; we encourage legiti-
mate claims of political asylum. All that we ask, however, is that
when people come into this country without documents, which is
prima facie illegal, and make a claim that they have a right to be
here, that that right should be determined in a hearing process. At
times it is necessary to detain them to make certain that that
right, which is not only theirs but is also a right of the American
people, that people come in in an orderly and sensible way, that
they be available for those hearings.
It was our experience before the detention program that you
mentioned, and the interdiction program, that Haitian aliens, with-
out documents, were coming into South Florida at the rate of
1,500-1,600 per month. With the institution of a detention pro-
gram, with the institution of interdiction, that rate has dropped to
just about zero. We think we have returned or restored some
degree of control to the United States about who comes in, about
how many people come in, when they come in, and under what cri-
teria they should come in. Those determinations, we believe, should
be made by lawful authorities, not by people outside this country.
There is no purpose served in inviting others to exploit us, which
has been our history. That is going to require some tough, firm
measures, hopefully tough, firm measures that will work as well as
this program has worked with regard to excludable aliens coming
in from Haiti.
Mr. KASTENMEIER. Of course, it wasn't the Carter administration
that invented the problem alone. I don't mean to defend them. I
think the Carter administration was stupid in terms of the Cuban
episode. They invited the calamity that followed and I think they
should be held accountable.
But the 3- to 6-million illegal aliens perhaps are not here just be-
cause of that administration. As a matter of fact, that administra-
tion proposed a bill not unlike that which this administration pro-
posed and it was not enacted by the Congress. It had three parts:
beefing up border guards, penalizing employment of illegals, and
readjustment status. Those are essentially the elements of this Ad-
ministration's bill. So the Congress bears some responsibility for
that. I think that administration at least did understand that it
had to cope comprehensively with the problem.
But assuming there are 3- to 6-million illegal aliens, and you
were able to round them all up. You presumably would not incar-
cerate them all, would you?
Mr. GIULIANI. No. In fact, our approach is, and what we have
recommended to the Congress, is legalizing the status of the 3 to 6
million, 6.5 million, whatever the number of people who are al-
ready here, basically legalizing their status, legalizing most of
them, because it would be ineffective, counterproductive and, we
believe, inhumane to attempt to round up people who are here,
who are productive citizens, who are working, who have families
Having said that and having done that, if that happens, we have
to, as reasonable people, recognize that that will create an even
further magnet of people wanting to come to this country and we
are already inundated with large numbers of people coming to this
In 1980, more people came into the United States, legally and il-
legally, than ever before in our history. Needless to say, this is not
a time when we can absorb people the way we did in 1900, 1910,
and 1920. So if we are going to support, and Congress is going to
legislate, a legalization program, I think that puts even more em-
phasis on us to return to some firm enforcement of our immigra-
tion laws, to cut down on the situation we inherited, of people flow-
ing into this country, as well as the situation we can anticipate we
would increase by our legalization program which we believe is ab-
solutely necessary. Otherwise, we would be in the posture that you
suggest, having to round up people that are already here, which we
don't want to do and which we think would be a mistake. But it
puts more pressure on all of us to beef up the resources of the
Border Patrol, of the INS interior enforcement, and in many cases
to detain so that a hearing does take place and a lawful determina-
tion can be made as to a person's right to be in this country.
Mr. KASTENMEIER. Volunteer groups have suggested that the
2,000 Haitians and certain other immigrant groups could be reset-
tied pending resolution of their status, at a nominal cost, and pre-
sumably with assurances of appearance at hearings.
Has the Administration considered this alternative and rejected
this in favor of the option for the detention of these people in se-
Mr. GIULIANI. The Attorney General announced a plan last
week, which he described-and which is an experimental plan-
which would make eligible for release on parole any of the Hai-
tians who are detained, who have counsel, who are ready, willing
and able to proceed with hearings, and who have a reliable spon-
sor, found under HHS criteria to be a reliable sponsor.
What we have proposed is a program of release, consideration of
release for each of those people that would qualify, and then, using
the results of that program to determine basically how future situ-
ations should be dealt with.
Let's assume that under that program 150 people are released,
just as a number, and then hearings take place. If, in fact, the vast
majority of those people show up for hearings and demonstrate
that the conditions of release are adequate to assure appearance,
then we would be unreasonable if we didn't consider expansion of
that to yet further groups of people, because it would demonstrate
that the conditions the Attorney General had set are adequate al-
ternatives to detention.
If, however, the experience is the opposite of that, and 150 people
are released and 50 or 60 show up for hearings and the rest do not,
and they have effectively gained entry into this country in a total
evasion of our law, then it would be irresponsible of us, in terms of
our responsibilities to the American people, to continue a release
program that was not resulting in people showing up for hearings.
That is why we call it an experimental program. It is one that
should help give us some objective facts on which we can make
some determinations as to what conditions are necessary, how
much further we should go, or not.
Mr. KASTENMEIER. Under that plan, if later found to be exclud-
able once so paroled or released to community sponsors, I under-
stand they would be reincarcerated, redetained; isn't that correct?
Mr. GIULIANI. At this point the plan applies only to those who
have not yet been found excludable, who have not yet had their
claims for political asylum determined on the merits to be inad-
equate and, therefore, have not had a legal determination that
they have no right to be in this country.
All I can say to that, Mr. Chairman-and we have had a number
of discussions about this, both internally and with groups on the
outside-this is an experimental program and that the results of
how the first 100, 150, 200 releases work would dictate how much
weight we would place on these conditions. No part of this program
Mr. KASTENMEIER. I would like to turn to the point of why the
decision was made on May 25, 1982, that the Bureau of Prisons
would be responsible for the two detention facilities and the 2,000
beds provided at El Reno, Okla., and Petersburg, Va. Why the
Bureau of Prisons rather than the Immigration and Naturalization
Mr. GIULIANI. The Immigration and Naturalization Service has
performed under some pressure-the Mariel boatlift situation that
you mentioned before and a number of these other influxes of
people, above and beyond the Haitian situation that we have
talked about-they have been under a tremendous amount of pres-
sure for several years now, and have done a superb job of handling
an emergency situation.
The nature of detention, however, has changed. At one time
asylum procedures and asylum applications were a relatively few
each year-I think 1,000 or 1,500. We now have, I believe, over
100,000 such applications, probably more. That has produced a
backlog, both in terms of those applications and longer term of de-
The whole experience of the Immigration and Naturalization
Service has been with short-term processing. The typical Mexican
situation is a good example. The Immigration and Naturalization
Service will apprehend large numbers of illegal aliens from Mexico
each year. They will be held for several days. Most of them will
agree to voluntarily return to Mexico. That is short-term detention
and it is the kind of thing that INS is very well equipped to handle.
It seemed to us, to the extent this was a Department of Justice
problem and a Department of Justice responsibility, that our ex-
perts, both INS's experts and the Department of Justice's experts
in longer term detention, with the ability to have educational pro-
grams, recreational programs, the kinds of things that are needed
if you are holding someone beyond a several-day period, that we
had one of the very best organizations for that purpose right
within the Department of Justice-the Bureau of Prisons.
INS had been turning to the Bureau of Prisons for expert help in
some of these areas before. It made sense that the Bureau of Pris-
ons would have primary responsibility much the same way the
Bureau of Prisons does for other organizations with INS acting, in
essence, as a client of the Bureau of Prisons. It would be a joint
operation, but with the Bureau of Prisons having the responsibility
for acquiring a site and administering it and putting in place the
programs that are necessary if you are dealing with longer term
detention, rather than just turn-around detention.
Mr. KASTENMEIER. What constitutes long-term detention, in your
view, as distinguished from short-term detention?
Mr. GIULIANI. Maybe I should ask Mr. Carlson and Mr. Nelson to
discuss the way in which they see their two organizations interre-
Mr. CARLSON. At the present time, Mr. Chairman, we have some
2,000 immigration detainees in our institutions. Most of those have
been in our custody now for over 1 year. Most of these, of course,
are the Cubans we have at the penitentiary in Atlanta, and the
others are the Haitians that are now scattered throughout six sepa-
The experience has been, as Mr. Giuliani indicates in his testimo-
ny, that the length of incarceration of the alien population has
been going up appreciably because of delays in the hearing process.
In terms of a cut-off date, I don't think I can give you a precise
date, except to indicate from the experience of recent months that
many of these people have been housed in custody for well over a
Mr. KASTENMEIER. Well over a year.
Mr. CARLSON. That's correct.
Mr. KASTENMEIER. Did you not assume that the two new facilities
were to be used primarily for short-term detainees, perhaps 1 to 3
days? Had you not indicated this to community groups and others?
Mr. CARLSON. Mr. Chairman, yes, we did indicate that many of
these people would be turned over very rapidly by the Immigration
Service, that they would not ask for political asylum. Mr. Nelson
could speak to that issue much more readily than I can. But there
will be some who will be housed for a number of months because of
the amount of time that would be required for the hearing process
to take place.
At this point in time, I cannot foresee how long they would be
incarcerated, simply because we haven't had the experience. As
Mr. Giuliani indicates, this is essentially a new program targeted
down the line when these facilities are open, which will be in 1985
at the very earliest.
Mr. KASTENMEIER. Do you deal with these detainees, who are de-
tained for various reasons, any differently than you do a prisoner
assigned to your facilities?
Mr. CARLSON. Mr. Chairman, we try to keep them separate from
convicted felons, for obvious legal reasons. That presents a problem
to us in our institutions in terms of logistics of the operation of the
facilities. But we do keep them separate in terms of housing and
movement around the institution. Obviously, there is visual contact
between the two groups, but there is no physical contact between
the two groups in our institutions.
In terms of the facilities that are provided-the medical care, the
food, all the other related activities-there is absolutely no differ-
ence. In addition, we try to develop programs for these detainees to
keep them occupied as constructively as we possibly can while they
are in detention.
Mr. KASTENMEIER. But you do that for prisoners as well, do you
Mr. CARLSON. That's right.
Mr. KASTENMEIER. So the only real difference is that they are
separated or segregated from your prison populations in these facil-
Mr. CARLSON. Insofar as possible, that's right.
Mr. KASTENMEIER. So in all other respects, they are prisoners
just like the other prisoners?
Mr. CARLSON. That is correct.
Mr. KASTENMEIER. Well, I have several other questions, but I
would like to yield to my colleague from Michigan, Mr. Sawyer,
who has been patiently waiting.
Mr. SAWYER. As I understand it, we have somewhere between
1,000 and 2,000 Cuban prisoners being held in Atlanta. I under-
stand that they have been there for more than a year; is that cor-
Mr. GIULIANI. That's correct, Mr. Sawyer. We have-what is the
Mr. CARLSON. It is 1,330 at the present time.
Mr. SAWYER. Most of those (Cubans) who are being held have
criminal records, don't they?
Mr. GIULIANI. That is correct.
Mr. SAWYER. Why don't we send them back if they have prison
Mr. GIULIANI. That is a question that everyone asks, and the
answer to it is a very complicated one.
First of all, under international law, you cannot return someone
or deport someone to a country that is not willing to accept them.
You have to gain acceptance and agreement by the country to
which you are returning someone before you can do so, and given
the relationships with Cuba, that is not the case. So what we are
faced with in the Department of Justice, and INS and the Bureau
of Prisons, is really a population of one time of over 2,000 such
people who were apparently convicted in Cuba of what we would
consider to be serious crimes. The only way we really know that is
not because we have the records from Cuba, obviously, as we would
with our own prisoners, but because at the time they came in the
INS personnel and the others who were dealing with the Mariel
situation were able to notice that they were wearing prison gar-
ments, were told that they were in prisons, and we have admis-
sions from them that they were serving time for crimes like
murder, rape, muggings, theft.
There was a lawsuit filed 1 year ago, a class action challenging
the Government's right to hold these people for possibly an unlim-
ited period of time.
Attorney General Smith created a review program, which is
really analogous to parole, so that we could find a way to solve that
problem. What we do is review each one of those cases. We take
the available records that we have, as to what they were convicted
of and as to what crimes they may have committed in Cuba, the
record that we have from INS and the Bureau of Prisons, as to
their behavior in confinement, and the review panel makes a deter-
mination as to whether they are releasable.
A large number have been found nonreleasable. If they are found
nonreleasable-and their case is reviewed every year, I believe-
the number that remain in Atlanta is largely the group that has
been found nonreleasable, either due to what they had been con-
victed of when they were in Cuba, or their behavior in confine-
ment, which has been a tremendous problem for the Bureau of
Prisons. I am sure Mr. Carlson can explain that better than I can.
Mr. SAWYER. Why couldn't we take them to Guantanamo and
just kind of let them go?
Mr. GIULIANI. I think maybe you had better ask the Secretary of
Defense and the Secretary of State that question. I am not sure I
know the answer to that.
Mr. KASTENMEIER. Would the gentleman yield just on that point?
Mr. SAWYER. Yes.
Mr. KASTENMEIER. Is it the situation that, were it the policy of
the United States to encourage its worst criminals who were, let's
say, in segregation in our major facilities, and they were willing, to
put them in a boat and send them to Cuba, Fidel Castro would be
unable to return them to us? Is that what you're saying?
Mr. GIULIANI. You mean under international law?
Mr. KASTENMEIER. Yes.
Mr. GIULIANI. Well, I don't know that Fidel Castro feels con-
strained by international law. We have, though, in our history, felt
constrained by international law and I guess that is one of the
prime differences between the United States of America and the
Communist Government of Cuba.
Mr. KASTENMEIER. But you're saying that, if the Cuban Govern-
ment recognized international law on this point, they would not be
able to return them to us; is that what you're saying?
Mr. GIULIANI. That's correct.
Now, you can get into agruments as to whether we are con-
strained by international law, considering the fact that he has vio-
lated it also. But it really is a problem, and I don't mean to evade
Mr. Sawyer's question, that is beyond the scope of the Justice De-
partment to adequately deal with.
It is our problem to have to come up with a sensible way to deal
with the problem internally. The Attorney General's review plan,
which has been upheld by the fourth circuit, we believe is the way
to do it. It keeps in confinement those who are truly dangerous,
and it permits a plan of release for some of the mistakes that were
made. There were people that were, obviously, not dangerous crimi-
nals who were also confined for a period of time because it took a
while to sort through their backgrounds and their records.
Mr. SAWYER. I am no authority on international law, but it just
seems to me rather unreasonable that we could just take and
export our prisoners to any other country, leaving Cuba aside. We
could pick one that we know is a nice, law-abiding country and let
them go there; then they can't send them back. I would think, if
that was the law, something would be changed on it.
Mr. GIULIANI. I am not sure it's just the law, Mr. Sawyer. There
are a lot of considerations of what we do and don't do with Cuba
that are beyond my ability to sensibly comment on.
Mr. SAWYER. Suppose we didn't pick Cuba. Suppose we picked
Venezuela or some other country and just took a whole boatload
full of unreleasable felons and turned them loose. Then they can't
send them back because that is against international law. Is that
what you're saying?
Mr. GIULIANI. No, I am not saying that. I am saying that is one
interpretation of international law. It is also a humanitarian prob-
lem to be returning people to a place that has said "we won't take
them back," because you don't know what they will do in response
to what you are doing. This is a much more--
Mr. SAWYER. Well, I would think it would be a lot more humani-
tarian than releasing them in the United States on our people.
Mr. GIULIANI. Well, the review plan, Mr. Sawyer, attempts to
keep in confinement, and has been successful, insofar as that is
concerned, to keep in confinement those who are dangerous-those
are the thousand-plus we are talking about-and to create an
avenue of release for those who are not. I share--
Mr. SAWYER. That is a big expense, though. If we have 1,300 of
them there, what does that run, $15,000-$20,000 per person a year?
Mr. GIULIANI. Mr. Sawyer, I share your frustration with that sit-
uation. I have got to live with it. Mr. Carlson has to live with it.
Mr. Nelson has to live with it every day. I would love to see a solu-
tion to it that would get those people out of here. That solution is
beyond my capability. It is beyond the ability of the Justice Depart-
ment to control, and it involves an awful lot of complicated consid-
erations that I don't really feel at liberty to discuss publicly, that
relate to how you want to best conduct your relations with Cuba,
what issues you want to put on the table, what incidents you might
want to provoke or not provoke. It is a very sensitive and complex
I would like a simple and quick solution to the problem as much
as you would, and I would like the Cubans that committed serious
crimes in Cuba to be out of American facilities. I think it is awful
that the American people have to bear this expense, but I think
there are other considerations involved also that have to be bal-
anced against something like this returning.
Mr. SAWYER. How long do we intend to continue this?
Mr. GIULIANI. The Department of Justice has the responsibility
for housing these people, until and unless some other solution is
found. All we can do is try to meet our responsibilities in the best
way possible, and we think the review plan-which actually was
quite ingenious, the fourth circuit said-the review plan will ac-
complish what is a sensible result, keeping in confinement those
who are dangerous and providing release for those who are not
The real problem--
Mr. SAWYER. But you have done that now, and you have 1,300
left over. Now the only other alternative that the review plan can
produce is gradually releasing them into the U.S. population.
Mr. GIULIANI. Or creating a basis for holding them, in some cases
for long periods of time, in some cases maybe for life. Some of these
people are murderers. Some of these people have committed
murder in confinement. A lot of our problem is tragically being
solved by their behavior in confinement. They are creating a record
above and beyond the record we had when they showed up that jus-
tifies their continued confinement.
Mr. SAWYER. If we took them to Guantanamo and just opened
the gate, and said "good-bye," it would seem to me we would get
this thing solved pretty economically and pretty fast.
Mr. GIULIANI. That is a solution that has been suggested by
some-I must say more than some-and it is one that I can't tell
you is not the right one. But what I suggest to you is there are
other considerations in doing that above and beyond just the prob-
lem of 1,600 that we have the unfortunate responsibility of having
to maintain for a period of time.
Mr. SAWYER. All I can say is, however severe our problems might
be here, at least it is nice to be a country that people want to get
into instead of wanting to get out of, isn't it?
Mr. GIULIANI. I totally agree with you.
Mr. SAWYER. Thank you.
That's all I have, Mr. Chairman.
Mr. KASTENMEIER. The Chair would like to acknowledge the fact
that one of the new members of the House Judiciary Committee,
Mr. Clay Shaw, of Florida, is with us this morning.
Do you have any comments or questions, Mr. Shaw?
Mr. SHAW. Yes, I do, Mr. Chairman. I would like to pursue the
Even though the hearing is primarily on the Haitians, I think
my interest, obviously, has been quite peaked with regard to the
question as to the Cuban detainees that we have, particularly in
the Federal prison.
I would like to add to the remarks of the witness, that when he
speaks of 1,330 Cubans, he is not speaking to those that are being
held by local prisons, particularly in south Florida, most particular-
ly Dade County. Even Broward County has its share of these in-
mates who would be excludable by their conduct and the felonies
that they have wreacked havoc upon the south Florida area by
committing some unbelievable crimes. The crime statistics down
there and the involvement of the criminals who came over on the
Mariel boatlift is an incredible, startling statistic that has created
tremendous problems for south Florida and, most particularly,
We spoke of international law. I understood-and correct me if
I'm wrong, because I may very well be, for as Mr. Sawyer said
about himself, I am not an expert on international law. But it was
always my understanding that every country in the world under
international law was required to receive back its own nationals.
Is that correct or incorrect?
Mr. GIULIANI. That's correct.
Mr. SHAW. Then I would say you have a situation of conflicting
laws and perhaps we should be selective as to which ones we are
going to enforce, realizing that this is a State Department problem
and not your Department.
Mr. GIULIANI. The problem, Mr. Shaw, is that if the country to
which you want to return people doesn't want to accept them, then
you have got the possibility that the individuals themselves, the
people that you use to effect this, could also be harmed; namely,
the American people who would have to participate in an action
like that, all of that raises really very serious issues as to, is it
worth it, isn't it worth it, would it involve loss of life, vhat would
happen, what other negotiating issues would be involved? I am
really not your best--
Mr. SHAW. When you look at the total--
Mr. GIULIANI. I am not your best witness on evaluating all of
The simple solution is a very attractive one. It is one that cer-
tainly has occurred to me, and I am sure it has occurred to Mr.
Carlson and Mr. Nelson many times when we have to deal with
this problem. But we don't get to make that decision in the long
run. I do have to say there are other considerations that are in-
volved that maybe more reasonable minds could differ.
If I gave the impression that international law was the only bar-
rier, I am sorry. Obviously, it isn't. We could interpret it our way
and they could interpret it their way. The real barrier, I think,
comes down to, is it worth it, what are the considerations involved,
what else could happen, and that is something I can't help you
Mr. SHAW. I think the overriding consideration, the problem that
we have here, is that our criminal justice system, or our whole due
process system, in no way anticipated this type of a frustrating
problem. It is just not addressed. The alternative of releasing these
people-and some of them are just incredible criminals-that alter-
native just does not exist. It is totally unrealistic. It is something
that we can never allow to happen. I think actually a military solu-
tion is more preferable to the solution of unleashing these crimi-
nals on the public, whether they be in south Florida, George, Ala-
bama, New York, or wherever. That alternative just simply is not
available to us.
I would like to ask one question with regard to the Haitian situa-
tion. You talked about the no-show problem with regard to the ex-
clusion hearings. Do we have statistics as to the percentage that do
show up and the percentage that do not?
Mr. NELSON. I will answer that, Mr. Shaw.
In the trial that was recently concluded before Judge Spellman,
there was some evidence introduced on that question, as to the no-
show situation. For the period February through April of this year,
1982, a survey was conducted in the Miami district of INS to deter-
mine the compliance rate of Haitians scheduled for hearings. These
are the individual exclusion hearings before the immigration
judges. During that period, 594 Haitians were calendared for hear-
ings, and only 156 appeared. That is 26 percent.
During the same period another 513 other than Haitians were
calendared and 376 appeared, with a compliance rate of 73 percent.
Now, like a lot of statistics, people argue what that means, but
those were the figures based on that survey.
Mr. SHAW. Thank you.
Thank you, Mr. Chairman.
Mr. KASTENMEIER. Following that up a bit, if they fail to appear,
are they designated as fugitives or whatever?
Mr. NELSON. Of course, then you have the practical problem of
catching up with them, and that is very, very difficult. Obviously,
INS doesn't have the enforcement capability with a lot of person-
nel to go out into the communities and try to track down people.
This has been a real problem in the past. I am not limiting this to
Haitians or South Florida, but refer to the entire detention area.
If people are out, several things happen. It is often not in their
interest to show up; they have, as a matter of practicality, found
that by not showing up they don't get caught very often. It is diffi-
cult to track them down and it is a very serious problem, a nation-
wide problem. That is one aspect, I think, throughout the whole
testimony, which underscores the need for greater enforcement. As
Mr. Giuliani testified, the strong commitment of this administra-
tion is to tighten up enforcement of our immigration laws, the serv-
ices aspects as well as the enforcement aspects. That includes de-
tention; that includes better apprehension. Apprehension, of
course, includes tracking down those that don't show up.
Mr. KASTENMEIER. As a group, are Haitians any more difficult to
keep track of than any other class of persons who come here with-
Mr. NELSON. I can't really answer that, Mr. Chairman. Of course,
the statistics I just gave certainly indicate a higher no-show rate.
Some will say the reason for that is that they move around a lot
and you don't have forwarding addresses and so forth. So if that's
true, it might be somewhat more difficult. I couldn't make a cate-
gorical statement they are more or less or the same in difficulty.
But it clearly is a problem, and it is a problem with any group of
illegal aliens for quite obvious reasons.
Mr. KASTENMEIER. That expands on the answer. They are not dis-
tinctive in that connection.
Mr. NELSON. Well, again, I don't know that. Certainly, the no-
show statistics might indicate there is some distinction, but it is a
broad problem, no question about it.
Mr. KASTENMEIER. Turning to the Cuban situation, Mr. Carlson,
as you know-you are very much consulted on the matter-Atlanta
was scheduled for closure at some point in the future.
Do the 1,330 Cuban aliens presently there constitute nearly all of
the prison population at Atlanta? What percentage do they consti-
Mr. CARLSON. Virtually all of the prisoners now at the Atlanta
Penitentiary, Mr. Chairman, are Cuban detainees. There is some-
thing in the neighborhood of 150 to 200 American prisoners who do
the maintenance work in the institution. We have to have the
maintenance there and require a variety of different mechanical
skills. They are there essentially to maintain the institution. But
the preponderance of the inmate population are Cuban detainees.
Mr. KASTENMEIER. Therefore, for the time being, is there no way
that Atlanta is likely to be closed? As far as you know, are the
Cubans going to remain there unless there is some resolution of
this problem somewhere down the line?
Mr. CARLSON. From a very selfish standpoint, I join with Con-
gressman Sawyer in his hope that some solution will be found.
These are very difficult people to deal with, as I am sure you can
imagine. But until some solution is discovered by our country, I'm
afraid we're going to have to house them at the Atlanta Penitentia-
ry for an appreciable period of time.
Let me also say that I have spent 25 years now in the business of
running prisons, and I have never yet encountered a more difficult
or a more violent or more dangerous group of people than the
Cuban detainees we have in Atlanta. As far as I'm concerned, on a
personal basis, I think they should be housed in a penitentiary situ-
ation for appreciable periods of time.
Mr. KASTENMEIER. Atlanta is a maximum security prison, isn't
Mr. CARLSON. Yes, it is.
Mr. KASTENMEIER. Mr. Shaw used the term excludablee." I am
wondering, to the extent that we determine that anyone who comes
to this country is excludable, presumably they are deportable. They
are deportable to the country of origin. Therefore, I do not under-
stand why we have a problem returning individuals to any particu-
lar land-Cuba or any other country-if they are excludable and,
therefore, deportable as individuals.
Mr. GIULIANI. Theoretically, there is no problem. Practically, the
problem is that Cuba will not take them back; therefore, you have
to force a solution and all the considerations involved in that. As I
said, I am not an expert in telling you the pros and cons of doing
it, or the dangers or the risks or what could be lost in negotiation.
As Mr. Carlson has said, if there were a solution that would in-
volve sending back the 1,300 that are in Atlanta, as well as, as Mr.
Shaw notes, the many others that are running loose in our society,
that keep getting arrested, it would be a very desirable result.
The 1,300 in confinement are just an illustration of the larger
number of criminals that Castro set free during the Mariel boatlift
that keep getting arrested in Florida, in New York, and Chicago,
and other places. We don't know how many, but it is a dramatic
example of what can happen when you lose control of your borders.
Mr. SHAW. Mr. Chairman, could I pursue that point?
Have we gone through any of the legal process with regard to ex-
cluding them? If the option were open to us tomorrow, either from
a negotiating basis with Mr. Castro, or as a military solution,
would the Justice Department be ready to proceed?
Mr. GIULIANI. I don't know the exact numbers, Mr. Shaw, but
the vast majority of those people have final orders of exclusion
pending against them. The only bar, the only legal bar that I can
think of to returning them would be the injunction that was an
outgrowth of the lawsuit in Atlanta before Judge Shoob, and that
is an injunction that really is intended not to deprive those who
are found releasable of benefits. So it really would be irrelevant to
a return if we could find a way to return them. So the short
answer to the question is there really is no substantial legal bar at
If, in fact, there were a way to do it, or a program worked out,
we probably would want to include larger numbers in the group
that could be returned. But there is a substantial group that could
be returned that have final orders of exclusion. It may be as many
as a 1,000. It may be 1,500.
Mr. KASTENMEIER. If my colleague will yield, you refer to a mili-
tary solution. I am curious to know what that involves.
Mr. SHAW. I think anything that would create a force of this
country to require Mr. Castro to take them back would be a mili-
tary solution, whether it be at Guantanamo, as suggested by Mr.
Sawyer, or whether it be an active beachhead to bring these people
Mr. Castro has-and we know this from information we have re-
ceived from Cuba-has from time to time pondered over the
thought of doing this again to us. I think perhaps our inability or
unwillingness to require his acceptance back of his own nationals
that are excludable from this country might possibly, in itself, en-
courage him to do this again.
I think the administration should come up with an actual solu-
tion to this particular situation, whether it be negotiated or forced
Mr. KASTENMEIER. I trust this matter can be resolved without a
military solution. I think we have--
Mr. SAWYER. Would the chairman yield?
Mr. KASTENMEIER. Yes.
Mr. SAWYER. I wasn't suggesting a military solution. It would
seem to me--
Mr. KASTENMEIER. No; I didn't think you were.
Mr. SAWYER. It would seem to me, as long as we have Guantana-
mo, all you have to do is, come a nice, dark night, show them the
fence and let them solve the problem themselves and then not let
them back. Now, that isn't quite having to do a beachhead landing
or anything like that. I think we could quietly and diplomatically
do it, and it's done.
I have just one more question--
Mr. SHAW. I would like to point out to the committee that I was
giving the extreme ends of possibilities. I think when you speak of
Guantanamo, you need to give consideration as to our particular
treaty entitling us to that base. We certainly have to be careful in
our conduct not to violate that treaty, particularly while Mr.
Castro is in power. That is a very important base to our military
Mr. GIULIANI. In fact, the best solution would be a negotiated so-
lution, because this is an ongoing problem for us. The 1,300 people
that are in confinement, as I said, are only a portion-we don't
know what portion, but only a portion of the number of criminals
that Castro sent as part of the Mariel boatlift. We are going to con-
tinue to be apprehending those people for the next 4 or 5 years,
and the number of people that are excludable and should be re-
turned to Cuba will keep increasing for a period of time. So that a
one-time solution is not the most advisable. But rather, if we could
negotiate an agreement for return, that would be a way to do it.
But I am speculating-we're all speculating. It really is a matter
that involves other considerations.
Mr. SAWYER. I have no dispute with that. But I have heard it
said that the Haitians are the only nationality that are being held
in confinement as a matter of general policy pending a determina-
tion of their refugee status; is that true?
Mr. NELSON. No; Mr. Sawyer, clearly that is not true. I know the
allegation has been made, but the policy as announced by the
President and Attorney General on detention, and as Mr. Giuliani
said, is based on the statutes, section 235 of the Immigration and
Nationality Act. That was just the subject of a trial in Florida
before Federal Judge Spellman. It is clearly not the administra-
tion's intent or actual practice to apply it only to Haitians, but to
apply it equally to all nationalities.
I might mention, again in light of some of the press concerning
Judge Spellman's recent decision-that although he is having a
remedy hearing on the procedural issue-a very major element of
the Spellman decision, and the one that certainly was the subject
of most discussion, dealt with the question of whether this adminis-
tration's policy was either discriminatorily applied to Haitians, or
whether detention itself was inappropriate because of its applica-
tion to the Haitians. The judge found in favor of the U.S. Govern-
ment on that point. He found there was no discrimination, that the
policy was being applied fairly to all nationalities. So we would like
the record to reflect that finding of the court, also, and make it
very clear that our policy is applied across the board.
Mr. SAWYER. What other nationalities do we apply it to as a
matter of policy, when they are asking for refugee status?
Mr. NELSON. Now you seem to be talking about the asylum
status. Of course, I might add a little more broadly that we detain
hundreds and hundreds of thousands of Mexicans all the time. It
has been a very standard procedure--
Mr. SAWYER. I am speaking of those, while their request for
asylum is being adjudicated or passed on.
Mr. NELSON. Well, very few Mexicans request asylum. They
almost all voluntarily withdraw their application to be in the
United States and return home. That is why--
Mr. SAWYER. What I am asking is, what other nationalities,
other than Haitians, are you applying a custodial situation to
during the pendency of their asylum request?
Mr. NELSON. Right. I was going to get to that. I wasn't avoiding
it. I just wanted to give the broad picture on the detention applied
Persons of many other nationalities also come in and illegally
ask for asylum. There are a significant number of Salvadorans,
there are others from Central and Latin America, there are Af-
ghanis-you can probably tick off another 30 or 40 nationalities
being detained in similar circumstances.
Mr. GIULIANI. Also, the whole situation in Indo-China was han-
dled in a very similar way, except outside this country. The differ-
ence between a refugee and an asylee really turns on where you
are asking for refuge in the United States. If you are outside the
United States, and asking to come in because you are politically op-
pressed, you are a refugee. If you are inside the United States,
you're an asylee.
Our experience in the past had almost exclusively been with ref-
ugees. The people who came out of Indochina claiming refugee
status were held in detention, but in Thailand, not in the United
Where their claim for refugee status in the United States was
properly adjudicated, and when it was determined that they had
such a claim, then we would participate with other nations and
bring them over to the United States. But while their right to be in
the United States was being adjudicated, they were held in deten-
tion camps. But since they were in third countries, which has been
largely our experience before, it wasn't happening actually within
the United States but the lawful process was permitted to operate
and they were just not allowed to come in willy-nilly without prov-
ing-and the burden of proof is on the person seeking entry-prov-
ing their right to be here.
Judge Spellman considered this issue in great detail during the
long trial that just ended, and his decision is very, very clear on
the point that--
Mr. SAWYER. Is that a reported decision?
Mr. GIULIANI. I am not sure it is reported yet, but I can give you
a copy of it. I have many copies.
Mr. SAWYER. Would you? I would appreciate that.
Mr. GIULIANI. I will get you a copy of it.
It is very clear on the point that the detention policy has been
applied and was intended to be applied across-the-boards and has
been applied across-the-boards, and neither in intent nor applica-
tion is it discriminatory or racist as to Haitians.
We regarded those claims as extremely irresponsible claims and
we were very, very happy that Judge Spellman, although he found
a technical violation of the law under the Administrative Proce-
dures Act, clearly held that the United States had not discriminat-
ed, was not engaged in a racist policy, and that the detention policy
had been applied to all races, all nationalities.
The claim of racism and discrimination, in my view, was a very
irresponsible and very unfortunate one that took this rationale
debate, where reasonable minds could differ, from rationale discus-
sion to highly-charged and emotional discussion. Hopefully, it can
return to the original issues.
Mr. SAWYER. As to those Haitians who were no shows, in effect,
do they issue fugitive warrants for them? What happens to them?
Mr. NELSON. Sir, this is Joe Salgado, Associate Commissioner of
Enforcement for INS. Maybe he can elaborate on that.
Mr. SALGADO. An individual warrant for arrest can be issued by
the district director. It is not put in the NCIC or any other crimi-
nal system that we know of. Basically, it is an operation that is
generally utilized by INS investigators to apprehend and bring
back undocumented aliens before the administrative judge or INS
Mr. SAWYER. So the chances of apprehending are kind of slight,
then, I would assume, if you don't have them on NCIC or anything.
Mr. SALGADO. I think that is a correct assumption.
Mr. SAWYER. Just the way it sounds, if it is going to be one or
the other, it would be nicer to be a refugee than an SIE or what-
ever it is you call them.
I guess that's all I have, Mr. Chairman.
Mr. KASTENMEIER. I am concerned about another aspect of all of
this, and a little more central to our inquiry, perhaps. I know that
you, Mr. Carlson, are a fine administrator and a good "soldier" in
terms of your work, and you have probably accepted this burden.
But I must ask you whether the placement of the Haitians and
other noncriminal aliens and, indeed, some of those aliens with
criminal backgrounds, has affected the administration of your
Bureau? Have the financial burdens assumed by the Bureau in this
fiscal year (1982), in fact, caused your community corrections pro-
gram to be restricted in terms of average number of days in half-
way houses and the number of persons affected? Has the use of
Petersburg as a separate facility for Youth Corrections Act offend-
ers had to be delayed because you couldn't transfer the inmates to
Otisville (N.Y.) or other prisons since Haitians were using that
I wonder whether all this doesn't cause a great burden for the
Bureau of Prisons in terms of your principal function, namely, cus-
tody of criminal prisoners of the United States.
Mr. CARLSON. Mr. Chairman, there is no question the presence of
some 2,000 illegal aliens in our institutions has compounded our
problems. As Mr. Giuliani indicates, we are some 4,000 over our ca-
pacity today, and of that number, approximately 50 percent or
2,000 are illegal aliens. So there is, without question, a compound-
ing of the overcrowding problem which results.
In addition, we have to operate institutions with separate popula-
tions; that is, the aliens being kept separate from convicted felons.
This does present logistical problems for us. But for many years
the Bureau of Prisons has housed illegal aliens. The magnitude of
the problem, of course, has grown in recent months because of the
influx of the Cubans and Haitians. But it is certainly nothing new
for us to be responsible for INS detainees.
For example, in our southwest institutions, particularly out in
San Diego, for many years we have housed illegal aliens who have
been picked up coming across the Mexican border into California,
Texas, and Arizona. This, of course, is something new in the north-
east areas, particularly with Cubans and Haitians.
Mr. KASTENMEIER. I am familiar with that facility. I visited there
when you had illegal aliens in custody, in detention.
But is it not true that your half-way house program has been re-
duced, and that you have other problems in terms of competition
Mr. CARLSON. Yes; it has strained our resources; there is no ques-
tion. The overpopulation has contributed to a number of problems
and, of course, half of the overcrowding is a direct result of the
alien population. On the other hand, the regular prison population
has also been going up, as you know, where our overall prison pop-
ulation is now 28,300, which represents about a 4,200 increase in
the past 14 months. So we have had an exacerbation of the prob-
lem of more commitments, staying longer, plus the alien popula-
tion, which has, without question, impacted on our overall oper-
I think the most significant thing, however, Mr. Chairman, is the
presence of the Cubans. As I have mentioned before, and I think
you and the committee staff are aware, they have presented tre-
mendous problems to us in terms of management. The Atlanta
Penitentiary was not designed for that purpose. Our staff were not
trained and equipped to deal with the Cuban detainees, and that
has probably presented the greatest single problem that we have
encountered, at least since I have been Director of the Bureau of
Mr. KASTENMEIER. Apparently that is going to be one of the long-
range problems as far as one could tell from the clues we presently
have; is that not correct?
Mr. GIULIANI. I really don't know the answer to that, Mr. Chair-
man. It might get solved quicker than we think; it might not. I just
don't know the answer as to how long we're going to have to deal
Until there is another solution to it, however, the Department of
Justice, INS, and the Bureau of Prisons has the problem to main-
tain them and we will have to do that.
Mr. KASTENMEIER. Mr. Giuliani, is the detention of the Cubans in
Atlanta the subject of any current litigation in terms of their
rights or their freedom?
Mr. GIULIANI. Yes, it is, Mr. Chairman. There is a lawsuit about
a year old, possibly a little longer, in the Federal Court in Atlanta
before Judge Shoob, a class action that originally began with alle-
gations that all of them should be released, that they were being
held in violation of the law, that they have violated no American
criminal law, and that to the extent we had knowledge of their
past criminal record, it was faulty, it was not the usual way in
which we would have such knowledge, that we didn't have official
records-any number of allegations that were raised.
The solution to it that we proposed to Judge Shoob in a separate
context, which has been held now to be constitituional and appro-
priate by the fourth circuit, is one whereby we would create review
panels of three lawyers, one from INS, one from the criminal divi-
sion, and one from elsewhere in the department. Those lawyers
would review every case in Atlanta and make a recommendation
based upon all the best evidence that we had available, which in-
cludes the admissions that they made when they came in at
Mariel, but also their behavior while confined. That panel would
make a recommendation to the Commissioner of INS either to re-
lease or not to release the particular individual. And then, as to
those that were found not releasable, to review that case each year
to determine whether they had displayed-the burden was on them
to display they would not be dangerous if they were released.
Some of those people-in fact, I fear a large number of them, as
Mr. Carlson has pointed out, the group that was found nonreleasa-
ble, just acting responsibly, we will have to house, assuming there
is no other solution to this problem, for very, very extended periods
of time. I would say some of them probably for life, unless we want
to take risks with innocent people.
Mr. KASTENMEIER. Is there a determination that any of them or
all of them may be excludable? Whether or not you can implement
the exclusion is another question. But are they excludable?
Mr. GIULIANI. Yes, Mr. Chairman. I can't say all. I am not sure
of that. But the vast majority of them have pending orders of ex-
clusion against them. So that if there were a negotiated settlement
to this, they could theoretically be sent back to Cuba or somewhere
Mr. KASTENMEIER. An excludable person who, for one reason or
another, may not be, in fact, deported. I should ask: Is such a
person to be detained as a matter of policy, irrespective of the
Mr. GIULIANI. This is a very unusual and unique problem, be-
cause immigration detention is for a period of time until some
result occurs. Even in the case of the Haitians--
Mr. KASTENMEIER. Prior to determination.
Mr. GIULIANI. Even in the case of Haitians, it is until there is a
hearing and a determination that they have a right to be here or
do not have a right to be here.
This is a situation where the determination has already been
made that they do not have a right to be here, that they should be
excluded, usually on pretty clear grounds, the fact that they have
committed a serious crime, and the question is how do you get
them back to Cuba.
Mr. KASTENMEIER. There must be precedent on that. Are they
normally paroled pending deportation? When an individual is
found excludable, but for one reason or another his government is
not able to deport the individual to the country of origin, what hap-
pens to that person?
Mr. GIULIANI. That was the issue that was decided by the fourth
circuit. The fourth circuit held that the Attorney General had the
discretion to indefinitely detain them, and that he had properly ex-
ercised that discretion in a reasonable way by creating this review
Mr. KASTENMEIER. Thank you, gentlemen. The committee has a
vote on the House Floor so we must leave for that. I appreciate the
testimony which all three of you have given.
There are a number of other questions, but I think we will
pursue those through correspondence or other means rather than
prolonging the hearing this morning.
Mr. GIULIANI. Thank you, Mr. Chairman.
Mr. KASTENMEIER. The committee will stand in recess for 10 min-
[Whereupon, the subcommittee was in recess.]
Mr. KASTENMEIER. The committee will come to order.
The Chair would like to greet our next two witnesses, Mr.
Edward J. Ennis, a member of the board of directors and former
chair of the American Civil Liberties Union, and who many years
ago during World War II served in the Department of Justice as
Director of the Enemy Control Unit.
Also, we greet and ask to come forward Mr. Arthur Helton, a
New York attorney, who will be representing Mr. Posner, executive
director, Lawyers' Committee for International Human Rights. Mr.
Posner could not be here today. He is in Florida for a court hear-
Gentlemen, we welcome you both. Mr. Ennis, would you like to
TESTIMONY OF EDWARD J. ENNIS, ESQ., MEMBER, BOARD OF DI-
RECTORS, AMERICAN CIVIL LIBERTIES UNION; AND ARTHUR
HELTON, ON BEHALF OF THE LAWYERS COMMITTEE FOR IN-
TERNATIONAL HUMAN RIGHTS.
Mr. ENNIS. Thank you, Mr. Chairman.
I appear today for the American Civil Liberties Union, of which I
am a member of the board of directors and former chairman of the
board, and former general counsel. I have been a member since
1946 when I left the Department of Justice.
We have filed a written statement and I will not merely summa-
rize that. I will refer to it as I go along.
Mr. KASTENMEIER. Without objection, your statement will be re-
ceived and made a part of the record, and you may proceed.
Mr. ENNIS. Thank you very much.
The ACLU, as a matter of policy, is not concerned with substan-
tive immigration matters such as what the quota shall be and what
the preferences shall be and the like. We are only concerned that
everyone who is subject to the immigration laws be treated equally.
The American Civil Liberties Union believes that the Haitian
group that we are going to talk about has been subjected to system-
atic denial of due process of law, unequal treatment under the law,
including long, harsh, confinement in crowded facilities, even so far
as placing these people from a Caribbean island in northern New
York in the winter time to discourage any attempts to seek asylum
in our country.
My knowledge of immigration, however, long precedes and is
much broader than the constitutional interests of the American
Civil Liberties Union. I began to handle immigration cases in 1934,
before most of the people in this room, as I have looked at the
young audience, were born, and when I was assistant U.S. attorney
in New York, where the assistant U.S. attorneys handled habeas
corpus proceedings brought by aliens. Even some of those cases
were rather extreme.
At the moment I recall one ignorant man who distributed the
Daily Worker, and he was charged with being in affiliation with
the Communist Party. Learned Hand thought that affiliation re-
quired a little bit more than being a news deliverer.
In 1941 I was General Counsel to the Immigration Service and
that job was created for me by Attorney General Biddle, because
he wanted to take the court handling of immigration cases out of
the criminal division and he wanted to make a clear separation be-
tween treatment of aliens not charged with crime and people who
were criminals, people charged with crimes.
Unfortunately, while I was collecting a staff to handle all immi-
gration cases, instead of having the criminal division handle them,
on December 7 we got into war and on that night I became the Di-
rector of the Alien Enemy Control Division of the Department of
Justice, in which position I continued during the war.
We managed in the Immigration Service to create detention
facilities for 10,000 interned german-Italian, and Japanese alien en-
emies, without bringing in the Bureau of Prisons. They are entirely
separate. At that time we thought it important that aliens interned
in deportation proceedings not be dealt with at all by the Depart-
ment of Prisons or imprisoned in any facilities connected with the
Department of Prisons, whose function is to deal with persons con-
victed of crime.
Turning now to the subject before us, this application for $35
million to create two additional detention facilities for Haitians, a
thousand in Petersburg, Va. and a thousand in El Reno, Okla., the
ACLU believes that this committee should not approve this. First,
and really for a minor reason, that facilities for aliens who require
lawyers and sponsors and some assistance in their asylum hearings
should not be placed out in Oklahoma and down in Virginia. They
should be near the ports of entry where these people enter. They
should be where lawyers are available, where sponsors are availa-
ble, and where a realistic proceeding can be had, instead of a hur-
ried pro forma proceeding by immigration officers in which the
alien gets little or no help.
Now, we have a second and a more important objection. This
committee and this Congress should not consider providing any
more detention facilities for Haitians at all, at any place, until they
first examine the lack of a parole problem for Haitians. I listened
to the Government officials sit here and tell the members of this
committee that they applied the same policy on parole of Haitians
awaiting asylum hearings as they did to all other aliens awaiting
That is correct in only one respect, and that is a very misleading
respect. They apply ostensibly the same rules. Everybody else gets
released and the Haitians all get detained. Now, that is not my
idea of applying the same rules. If they do apply the same rules,
why did the Attorney General of the United States just last week
have to issue a statement saying that "Attorney General Smith an-
ounces today that he will consider parole for humanitarian rea-
sons undocumented aliens from Haiti." Why is that necessary if
they had the same policy for Haitians up until last week as they
said here before the committee?
The truth of the matter is that their policy was to detain all Hai-
tians pending the determination of whether they were excludable
or whether they had asylum status for really the unspoken politi-
cal reason which is not discussed at all; namely, that they wanted
to make it perfectly clear that nobody should try to come from
Haiti and seek asylum in this country.
By the way, apparently their use and misuse of the Haitians who
were here to discourage additional efforts to come from Haiti, and
the patrolling of the Windward Channel by the Coast Guard, has
worked. But the question before this committee and before the Con-
gress is to what extent can Haitians who are in the United States,
how long can they be detained to exercise that policy, that foreign
policy, of discouraging people to come here?
If there is one principle that is important under our Constitu-
tion, it is that every person who puts a foot on the soil of the
United States is under the shield of the U.S. Constitution, and he
must be given equal protection under the laws and he must be
given due process of law. It would never occur to any of us that an
alien who was here illegally could be criminally tried and not given
a jury. But the Constitution doesn't say that aliens shall have
juries and criminal cases, but only due process or equal protection
of the laws.
The most important principle in this very difficult problem-and
I would like to say here as a citizen and as a former General Coun-
sel of the Immigration Service, I am not hostile to the problem of
the United States in dealing with illegal aliens. But Mr. Giuliani
says "we have millions of aliens here because of the parole prob-
lem." Of course, that is nonsense. Most of the illegal aliens here
are from Mexico and have never been sent here illegally, the so-
called wetbackss," though the Rio Grande is often not high enough
to wet your back, and they are here without having been subject to
any process at all. You cannot punish the Haitians for the depth
and breadth and difficulty of our immigration problems.
Now, what Mr. Giuliani and his associates did not discuss is that
the reason they are asking for additional facilities in Oklahoma
and Petersburg, away from the places of entry where these people
can get some help. The reason such facilities have to be required is
that they have not been treated equally under the parole problem.
Long before the boat people came from Cuba, 125,000, at least an-
other 100,000 came to the United States with the approval of this
Congress, which passed a law saying they should be paroled in as
political refugees. Why was that done? Obviously, it is part of our
foreign policy to embarrass this nearest Communist country to us,
by saying that, if permitted, and if we accepted them, hundreds of
thousands of people would leave Cuba.
We did that and we gave Fidel his black eye by showing that
people would rather live in the United States than in Cuba. The
response, of course, which we didn't expect, that in addition to the
over 100,000 people that we took in under the law, another 125,000
would be dumped on us outside the law.
As you discussed it with Mr. Giuliani, I was surprised that when
you're dealing with 1,300 people in prison in Atlanta, that no refer-
ence was made to the fact that the reason they are there is because
we have no diplomatic relations with Cuba, and that this whole
thing was generated by us originally by inviting over 100,000
Cubans to come here. Were they examined as to whether they were
economic refugees or political refugees? Of course, not. I have been
to Cuba and I have been to Haiti. It's a very mixed and complex
individual question as to whether a particular person from Cuba is
an economic refugee rather than a political refugee.
You know, when you are dealing with common working people,
their interest is more in being fed properly and clothed properly
than it is in the politics of the government. I think thousands of
the persons who came from Cuba were really economic refugees.
You would think so, too, if you were to see the limited food and
clothing and limited life there is in Havana and all of Cuba. And
yet we treat them all as political refugees.
Now, the Haitians, which everyone agrees has the most desper-
ately terrible government in the Western Hemisphere, and has the
greatest poverty, all of those, of course, are treated as economic ref-
ugees and not political refugees of Baby Doc's repressive govern-
The question this committee and the Congress should ask of the
Department of Justice is apply this new policy which the Attorney
General has stated and see if you cannot parole the Haitians in in
the same was as you paroled not only the Cubans-that's a special
case-but political refugees or refugees from other countries in
both Central and South America. Let these new facilities wait until
we see how this new parole policy works.
I have some doubt about this policy, for the simple reason that it
says they are going to consider the parole applications, and if they
have private lawyers, and if they have sponsors, and if they can get
up a bond. If you look at the statement, and I hope you will, it has
a whole string of provisos as to how a Haitian shall be paroled.
I'm telling you, gentlemen, that I believe the Department of Jus-
tice is just playing a stalling game. They have accomplished their
purpose of stopping immigration from Haiti and they are going to
treat as rigorously as they can this group who haven't been paroled
in order to make it perfectly clear to Haitians that this is not a
viable alternative to the terrible life they have in Haiti.
Now, that would be very well if we were dealing with an authori-
tarian government, not restricted by the Constitution of the United
States. But the Attorney General can stall. There are a great many
things that can be done without bringing the Constitutional provi-
sions to fruitful play. But that is what is going on.
Normally, like in the Japanese evacuation of Americans, with
which I was very familiar, and opposed it in the Department of
Justice, as did the Attorney General, but the War Department did
it and this Congress assisted it by passing a law making it a crime
for any person resisting to be evacuated from the west coast. The
courts didn't get into it until after it was all done. Finally, after 2
years in internment, the Supreme Court of the United States decid-
ed that the President had really never authorized the detention of
the Japanese-Americans so we didn't have to get to the Constitu-
tional question. The Executive order wasn't clear enough. So they
were detained under an improper order for two years.
Here you are in an unusual situation. Usually, Executive action
and legislative action precede judicial review. Here you have the
judicial determinations. I don't agree with what was said about
Judge Spellman's decision. I think the members should read the
decision. I also think you should read two other decisions, one in
1980 by Judge King, which is 90 double-column pages in the Feder-
al Reports, and he concludes, after an extensive trial, and on the
basis of factual presentations, that the purpose of the Department
of Justice-and I'm quoting-"the program was set up to accom-
plish the exclusion by denial of due process, denial of notice of the
right to an amnesty application, denial of effective use of counsel"-
and this decision in a 90-page opinion was approved by the 5th
Circuit Court of Appeals.
In addition, Judge Carter in New York, he has written two long
opinions, after a factual examination, and he also has concluded, as
the facts would really not permit any other conclusion, that there
was a special program for the Haitians, they were systematically
denied due process of law, equal protection of the law, right of
counsel, proper notice, and that this was a racial discrimination
and a denial on the basis of race and nation. I think it was denial
almost irrespective of the color of people, just to stop people coming
from Haiti. Our Constitution doesn't permit that.
You now have the advantage of decisions. Judge Carter's rulings
were appealed to the court of appeals and you will have the advan-
tage of the decision of the court of appeals for the second circuit. I
don't know what it will be, but certainly you should have the ad-
vantage of those opinions.
For Mr. Giuliani to say that Haitians are treated just like all
other aliens flies in the face of every finding of fact that has been
made after careful judicial consideration of the situation. I think
that this committee should not approve this $35 million for addi-
tional facilities until we see whether these 2,000 Haitians for whom
they are making these 2,000 beds available ought to be in detention
Mr. KASTENMEIER. On that point, I am going to have to recess
the committee. We have another vote. There are only two minutes
left to make the vote.
I ask the indulgence of the witnesses and I hope your patience
will await us while we recess for ten minutes.
[Whereupon, the subcommittee was in recess.]
Mr. KASTENMEIER. The committee will come to order.
We will ask Mr. Ennis to proceed.
Mr. ENNIS. In the interest of saving time, I shall leave to ACLU's
written statement our objections to the Mazzoli bill, which we be-
lieve wrongly tries to arrange for the summary exclusions denying
the asylum claims, and also attempts to eliminate judicial review. I
can understand why the Department of Justice might want to elim-
inate judicial review if they're going to get the kinds of judicial
review they have been getting, but I don't think this Congress
should support the elimination of judicial review.
If it is agreeable to you, a statement has been submitted by the
Lawyers' Committee for International Human Rights, and Mr.
Helton is here to discuss that. I would like to call to the commit-
tee's attention that this is a most distinguished legal committee,
containing two former members of this body, former Congressman
Robert Drinan and former Congresswoman Elizabeth Holtzman;
two former presidents of the Bar Association of the city of New
York, Adrian DeWind and Orville Schell. Its chairman is a former
U.S. District Judge in the Southern District of New York, Marvin
E. Frankel, and former Attorney General Ramsey Clark is on the
committee, and also two very distinguished law professors, Telford
Taylor of the Columbia University Law School and Norman
Dorsen, constitutional law professor at New York University Law
School and my successor as chairman of the American Civil Lib-
I would like to terminate my remarks by just this general state-
ment for the committee.
Immigration is very complex, as your own discussions indicate,
because we are not prepared to adopt an authoritarian and a rigor-
ous immigration system. It would be very easy to build a wall
across the Mexican border. After all, the Communists have built a
wall from the North Sea down to the Czech border, not just
through Berlin. It is very successful. Nobody gets across unless he
goes through Check Point Charlie. Otherwise, you get killed. The
military police of the Soviet Union keep everybody from going out
and going in. We could, of course, do something like that.
But we have chosen another way. We haven't articulated it, but
instinctively and democratically we have chosen a looser and per-
haps a less efficient system. But is it an essential part of our some-
what inefficient but more democratic and more humane and hu-
manitarian form of life. In.sticking to that system, we are going to
have some inefficiencies. Of course, these 2,000 Haitians are a nui-
sance. The Cubans in jail are a nuisance which we have as a result
of the way we have tried to deal with Cuba. I am not saying our
system is wrong; it is just a price we pay for our system.
I urge this committee not to fall into the trap we did in the evac-
uation of the Japanese, of taking a stringent course and then being
sorry for it. It is the price we pay for upholding individual human
rights of the poorest people that get to the United States in any
way. And what we get for it in humanity and democracy and as a
leading nation in the world, it is worth that price. We should stay
with our somewhat inefficient system.
Thank you very much for your attention, Mr. Chairman, and
members of the committee.
[The statement of Mr. Ennis follows:]
PREPARED STATEMENT OF EDWARD J. ENNIS
Mr. Chairman and members of the Committee, I am Edward J.
Ennis, member of the Board of Directors of the American Civil
Liberties Union (ACLU). I was formerly chairperson of the
board (1969-1977), one of its general counsel (1955-1969) and
have served as a member from 1946. I appreciate the opportu-
nity to present the ACLU's views on the Reagan Administration's
policy of imprisoning uaitian refugees awaiting asylum proceed-
A congressional inquiry into the allegations of. serious
constitutional violations which have resulted from the Haitian
detention policy of the Immigration and Naturalization Service
(INS) is imperative, and we congratulate the members of this
subcommittee for this important undertaking. Charges of gov-
ernmental discrimination in the administration of asylum pro-
ceedings and in the parole of Haitian asylum applicants pend-
ing hearings warrant the most careful congressional scrutiny.
S;-am.here to request your assistance in securing the
immediate parole of Haitian detainees. The overriding issue
in the Haitian detention policy is clear: Whether the nation's
immigration laws are to be followed and impartially applied
by the agency charged with enforcing them? Where these laws
have not been impartially administered, as in the present
case, the issue becomes whether the Congress will take corrective
action in exercising its responsibility for oversight and
Approximately 2100 Haitians have been detained by the U. S.
government for more than a year, many of them in federal
prisons. This is a sharp break with past policy in which asy-
lum applicants have been turned over to voluntary agencies
for settlement in the community. Race is undoubtedly a factor
in the treatment of Haitians, since they are the only nation-
ality being detained as a matter of policy while their asylum
claims are processed. Recent federal court decisions have
forced the inescapable conclusion that serious violations of
civil liberties and due process of law have occurred in the
treatment of Haitian refugees based on policies of the federal
i.:h unlawful cad discriminatory conduct toward Haitianz :3-
fugees is, unfortunately, not new. For the past eight years,
Haitian refugees seeking freedom in this country have been sys-
tematically denied their right to the fair and impartial admin-
,istration of our immigration laws at the hands of the government.
They have been improperly denied their statutory and treaty
.rights to a hearing before an immigration judge in exclusion
proceedings on their claim for political asylum, Sannon v. United
States, 427 F. Supp. 1270 (S.D. Fla. 1977). They have been
denied their right to notice of the procedures that the government
intended to use against them in exclusion proceedings, Sannon v.
United States, 460 F. Supp. 458 (S.D. Fla. 1978). They have
been denied the very right to be heard on their asylum claims,
Haitian Refugee Center v. Civiletti, supra. They have been
denied their right to counsel and to fair process in their
exclusion hearings by being shipped to remote areas of the
United States, Louis v. !eissner, 530 F. Supp. 924 (S.D. Fla.
1981). They have been denied equal protection of laws in then
determination of their eligibility for parole, Vigile, et al
v. Sava, 81 Civ. 7371, 7372 (RLC) (S.D. New York, 1982).
This chronicle of abuse of both constitutional and human
rights graphically illustrate the continuing, unshakeable desire
of the goveriiLenit t yv-p"aticallv depri-ve Haitians of their
rigih to seek asylu.- in the United States.
However, while federal court decisions form'one level of
the debate over long-term alien detention and immigration
policy, there are also other significant policy considerations.
The use of federal prisons for the detention of aliens who
I have committed no crime is certainly one such consideration
-. which should be of particular interest to this subcommittee.
There are, of course, also substantial fiscal concerns: on
May 25, 1982, the Reagan Administration requested $35,000,000
in supplemental appropriations for FY '82 for the construction
of two new detention facilities for "illegal" aliens; apparently
"long-term" detention of aliens claiming asylum is to'be the
established policy of the future. This is undoubtedly a
costly approach to the problem.
As if this were not drastic enough, the Reagan Administration
has also formulated a series of legislative proposals seeking
broad authority from Congress for substantial changes in the
nation's immigration laws, including the policy of alien-deten-
tion. The thrust of these proposals would provide "admini-
strative efficiency" in an area of great complexity. However, the
issues raised have far-reaching significance not only to aliens,
but to American citizens and to our basic constitutional struct':e.
The "Immigration Emergency Act" (Title VII of H.R. 4832/5.
1765) and the prolonged detention of Haitian refugees are the
most graphic examples of the overbreadth of some of the Admin-
istration's proposals in this area. The "Emergency Act" seeks
a sweeping grant of power to the President to suspend the Con-
stitution in the name of refugee management and control. It
is intended to respond to an "emergency" posed by the mass
migration of refugees like the Cuban Flotilla of 1980, but it
would confer upon the President special authority to unilater-
- ally declare an immigration emergency, during which sharp re-
strictions could be imposed on such constitutional rights and
protections as the right of citizens to travel both internation-
ally and domestically. The bill would also virtually eliminate
judicial review in political asylum proceedings, and would
severely restrict the jurisdiction of the courts to review the
reasonableness of other provisions of the Act.
The Immigration Emergency Act is a request for legislative
endorsement of broad executive authority to override ccnstitu-
tional protections. The proposal is the progeny of other dis-
credited programs in American history. The sense of hysteria
which these programs and proposals project is hardly conducive
to reasoned consideration of revision of the long-term immi-
gration policy of the United States.
Nevertheless, it is a question of long-term policy that is
before the Congress, and it is essential for the Congress not
to be swept up by appeals to short-term administrative effi-
ciency or methods of cutting corners which will have profound
and lasting negative impact on our civil rights. The shape of
the immigration and refugee policy with which Congress is now
wrestling will have an enormous influence over the structure
of our const-itutional democracy in the last two decades of
the twentieth century.
In the case of the Haitian detainees, the government has
chosen to respond with simplistic solutions to a.turbulent
national climate, confused about problems of illegal immi-
gration and increasingly hostile to aliens. As with Japanese-
Americans during World War II, once again an insular group has
been arbitrarily targeted and presented to the American public
as a source of grave national difficulty. The climate for
immigration reform generally has become more restrictive as
as it relates to civil rights concerns; Haitian refugees are
bearing the brunt of this change in attitude.
While the ACLU welcomes the recent announcement of the
Justice Department's "amended" policy on Haitian detention,
we are gravely concerned that the new policy of release is
unnecessarily restrictive. From initial reports, it appears
that the release policy is a "sham", likely to benefit no more
than 180 of the approximately 2,000 Haitian detainees.
The Attorney General's amended parole proposal imposes a
number of conditions upon the Haitians' release. Of particular
concern in the requirement of representation by individual
counsel, an issue which raises numerous pragmatic and legal
questions. Additional information from the Justice Department
indicates that Haitians would be returned to detention faci-
lities upon denial of an asylum appeal. This provision penalizes
them for exercising their judicial right to appeal. The ACLU
finds these conditions of release harsh and discriminatory.
They again raise questions about equitable treatment of Haitians
in comparison with other aliens.
The government claims, on questionable grounds, that strong
guarantees are necessary in the Haitian case because of their
high rate of non-appearance at asylum and exclusion hearings.
Voluntary agencies which have resettled Haitians in the past
clearly refute these allegations. They uniformly attest to the
solid appearance record of Haitians who have been properly
notified of hearings by the INS. Certainly the Congress should
closely examine the government's assertions in this area.
The government's current Haitian detention makes a mockery
of our historic commitment to those who have valid claims to
political asylum. The Immigration and Naturalization Service
and the State Department have offered no credible specifics
in support of their official declarations that, with a few
exceptions, Haitians flee to America for economic, and not
political reasons, and thus are not entitled to refugee
status. (See generally, "Human Rights in Haiti"
by Michael S. Hooper, Director of Haiti Project, Dec. 12, 1981;
Lawyers Committee for International Human Rights). In fact,
available evidence adduced by numerous civil liberties organi-
zations and by two federal district courts suggests just the
opposite. See Haitian Refugee Center v. Civiletti, 503 F. Supp.
442 (S.D. Florida 1980), affd. sub.. nom., Haitian Refugee
Center v. Smith, F. 2d (Sth Cir., Unit B. 1982); Laissez-Moi
Vigile, et. al.v. Sava, 81 Civ., 7371, 7372 (S.D. New York
March 5, 1982).
. The State Department itself, in. commenting on the political
conditions in Haiti, concluded that Haiti was "The most repressive
( regime. in..the hemisphere." It observed that it is a regular practice
in Haiti to suspend major sections of the Haitian Constitution
concerning protection of individual liberties, and giving
its president, full power to rule by decree (Hooper, supra,
quoting from 1980 Country Report on Human Rights Practices).
Judge James King of the Federal District Court in Florida
declared that Haiti has "The most repressive government
in America." Haitian Refugee Center v. Civiletti, supra.
The Court's finding that the conditions in Haiti are "stark,
brutal and broody" are supported by personal testimonies of
Haitian political dissidents who have suffered vicious per-
secution at the hands of the Haitian government for attempt-
ing to express their political views. (See, "Haiti-Human
Rights Violations: October 1980-October 1981", November
1981, Amnesty International). Haitians fortunate enough
to survive such treatment relate that the Haitian population
is subjected to terrible indignities and physical maltreat-
ment, revealing a consistent pattern of gross violation of
Since 1938, hundreds of thousands of Haitians have fled
to escape the cumulative effects of repressive Haitian govern-
ment actions. :The judicial branch of the Haitian government
does not have the independence to exercise its authority to
protect basic civil liberties. The Haitian people are bereft
of any form of legal procedure and due process rights. The
Inter-American Commission of Human Rights which visited Haiti
in 1978 found that "freedom of inquiry, opinion, speech and
dissemination of thought does not exist." ("Haiti", Amnestv
International Recort 1981 ).
In April, 1982, Secretary of State Haig, pursuant to
requirements of the International Security and Development
Cooperation Act of 1982 and under Presidential authority,
certified to the Congress that Haiti is cooperating with the
United States in halting the emigration of illegal aliens.
The certification is a prerequisite to continuation of U.S.
foreign aid to the Duvalier regime. To prevent accusations
that restricting the emigration of illegal aliens might
be synonymous with suppressing political refugees, the Pre-
sident is also required to certify that the government of
Haiti is not engaged in consistent pattern of gross violations
of internationally recognized human rights.
Once the presidential certification on human rights con-
ditions in Haiti is authorized, the logical consistency of
this assertion would seem to preclude an advisory opinion
from the State Department that would condone political asylum
claims for Haitians. Although an individualized standard
governs asylum determinations, the State Department's view
is often dispositive of the outcome on asylum decisions. This
may well be a conflict where fact and foreign policy collide,
and where constitutional rights and obligations under inter-
national law ignored.
I would now like to briefly elaborate on another element
of the tragedy of Haitian detainees. The ACLU is ala-rmed by
the historical parallel between the Haitian detention policy and
that of Japanese-American internment during World War II .
an action now widely and properly condemned as contrary,to
basic American constitutional principles. The detention of
Japanese-Americans is a major stain on the national honor; the
long-term detention of Haitians pending asylum hearings may
soon approach the magnitude of this injustice.
The specter of Japanese-American internment during World
War II is inescapable when one discusses a permanent detention
facility in the contn-xt o: national orii.n discrimination. And
although there are significant differences in the situation of
the two groups, there are also distinct similarities: violations
of due process of law based, in part, on race or national origin;
the indefinite detention, itself, and lastly, a general sense
of political hysteria which is used to undergird and legitimate
the violation of constitutional rights.
I shall comment briefly on the Japanese-American intern-
ment from my vantage point as Director of the Enemy Control
Unit of the U.S. Department of Justice from December 1941
to 1946. The unit was concerned with internment parol,
release and travel control of all aliens fo enemy nationality,
including Japanese aliens.
The Congress has received much testimony about the forci-
ble evacuation of Japanese-Americans during World War II. Of
course, from our current perspective, the utter folly of this
military exercise seems clear. It used thousands of military
personnel who should have been training to fight the enemy
abroad to uproot this minority on the West Coast, many thousand
of them engaged in raising food for the military as well as the
civilian population; and transported them to interior relocation
centers to be fed and maintained in comparative idleness and
guarded by military police. I shall not dwell on the folly of
this decision here other than to say that it is an example of
the confusion and hysteria that can lead to serious errors of
military judgment. I shall, instead, restrict my remarks to a
brief account of the opposition of the ACLU to the expulsion
program and some personal observations which may interest and
be of help to this subcommittee in its consideration of
the implications of the Haitian detention policy for the
continued protection of constitutional rights.
As soon as it was known that an evacuation program was
being considered, the ACLU, both the national organization
with its headquarters in New York, and its West Coast affiliates,
immediately, vigorously and continuously opposed the evacuation
as unnecessary and unconstitutional. Before the evacuation and
Executive Order, Roger Baldwin, then executive director of the
ACLU, and Clifford Forster, Esq., staff counsel, came to Wash-
ington more than once and conferred with Attorney General
Francis Biddle and me in the Department of Justice and with
the Assistant Secretary of War and other War Department offi-
cials. The ACLU acknowledged that in wartime, appropriate
military areas might be established requiring military super-
vision, but urged that any mass evacuation not based on cause
as established in individual hearings would be unconstitutional.
Just as Attorney General Biddle's own objections to the evac-
uation as a factually unwarranted measure did not prevail with
President Roosevelt,who approved the War Department's request
for the necessary Executive Order,the ACLU's representations
were fruitless. Given the atmosphere of panic which prevailed
at that time because of Japanese military successes on land and
sea in the Pacific in early 1942, such a high-level decision,
while not excusable, was to be expected.
After Executive Order 9066 was issued on February 19, 1942,
the Act of March 21, 1942 was enacted amending the Criminal Code
(18 USC S 97A) to make it a misdemeanor punishable by fine or
imprisonment to violate restrictions (including curfew and ex-
pulsion orders) in military areas. The ACLU and its West Coast
affiliates immediately became involved in myriad problems
created by various military orders issued under the Executive
Order. Defense was provided against the prosecutions brought
to enforce the military curfew and exclusion orders, in which
convictions were obtained. Cordon Hirabayashi received a three-
month jail sentence for violating an 8 P.M. to 6 A.M. curfew
order. Fred Korematsu was given a suspended sentence and
placed on probation for five years for failing to obey an
order excluding all persons of Japanese ancestry from a mili-
tary area. Both convictions were affirmed by the U.S. Supreme
Court. Hirabayashi v. United States, 320 U.S. 81 (1943) and
Korematsu v. United States, 323 U.S. 214 (1944).
The ACLU or its affiliates were active in all stages of the
cases, including briefs in the Supreme Court arguing the uncon-
stitutionality of the convictions. The ACLU was also involved
in Ex Parte Endo, 323 U.S. 283 (1944), in which the Court held
that the War Relocation Authority had not been authorized bv
statute or Executive Order to detain a citizen of Japanese
ancestry in a relocation center until acceptance in a community
outside the camp was established under its administrative pro-
cedures. Thus, the decision of the question of whether such
detention, if authorized, was constitutional was not reached by
the Court. Mr. Justice Owen J. Roberts, in a concurring opinion,
protested that the Court thus avoided the constitutional issue
of factual detention by the WRA asserting and exercising the
authority to do so.
It is the view of the ACLU that the mass evacuation and
subsequent detention of the entire Japanese-American population
from the West Coast in 1942 was the greatest deprivation of civil
liberties by government in this country since slavery. The fact
that it occurred during a war, being fought principally abroad,
it not sufficient reason to justify this action.
Likewise, it is insufficient for the government to justify
its discriminatory policies toward Haitians by asserting the need
to protect U.S. borders from an alien invasion. This is not a
time of war, and the hysteric response to aliens seeking political
asylum cannot be supported. As Judge Robert Carter asserted in
his opinion in Vigile, et. al. v. Sava, 81 Civ. 7371, 7372 (RIC)
(S.D. New York 1982) at 19, 21:
There comes a point at which "temporary" detention
takes on the aura of permanence. When definite
confinement appears in the immigration context it
corrodes the spirit of compassion and humanity
which our laws are meant to reflect.
...After 10 months of unlawful confinement in
a harsh environment, justice demands swift
The current immigration policy of forced confinement is a
reversal of America's humanitarian tradition of aiding individ-
uals fleeing repressive regimes that engage in brutal human
rights. However, the issue is not humanitarian considerations
alone. Constitutional rights are the issue, and these rights,
as they relate to Haitian refugees, have been violated by
The complicity of government policy in the deprivation of
constitutional rights of Haitian asylum applicants is indis-
putable. The government's purpose is clear: to discourage
further emigration from Haiti and to deport speedily the detained
Haitians. Surely, a nation which was built by immigrants and
founded on principles of constitutional rights is capable of
developing a fairer, more humane immigration policy. The
Haitians' right to assert claims of political asylum is protected
by our constitution and symbolizes our nation's commitment to
freedom of political belief and expression.
The American Civil Liberties Union regards the detention
of Haitian refugees as a clear and continuing violation of
basic constitutional rights which should promptly cease. We
urge you to pressure for reversal of this appalling policy.
The Haitian detainees should be released immediately.
Mr. KASTENMEIER. Thank you, Mr. Ennis, for a very illuminating
statement. It is really one that is exceptional in terms of what it
Perhaps it would be best to proceed with Mr. Helton at this
point. I think we will have some questions for you, though.
Mr. ENNIS. Oh, of course. I'll be right here. I wanted to leave the
floor to Mr. Helton.
TESTIMONY OF ARTHUR HELTON
Mr. HELTON. Good day, Mr. Chairman, and members of the sub-
committee. I thank you, Mr. Ennis, for the introduction of many of
the distinguished members of our board.
My name is Arthur Helton, and I am testifying here on behalf of
Mike Posner of the Lawyers Committee for International Human
I would ask that my prepared statement, as well as the release
plan that the Lawyers Committee has prepared and that will be
presented in court in Miami this afternoon, in connection with the
class action covering about 2,000 detained Haitians, be received in
the record of these proceedings.
Mr. KASTENMEIER. Without objection, your statement or that of
Mr. Posner will be received and made a part of the record. You
may proceed to summarize it if you wish.
Mr. HELTON. Thank you, Mr. Chairman.
If I may amplify upon my statement and respond as well to some
of the comments made this morning; Initially we questioned very
seriously the assumption of the legality of the detention policy that
was expressed by Mr. Giuliani as well as Mr. Nelson. The detention
policy, in our view, has been discriminatorily applied to Haitians,
and apparently that policy is now sought to be institutionalized
through the building of facilities.
In particular, last Friday Judge Eugene P. Spellman found that
Haitians were being detained disproportionately in evidence pre-
sented in the trial before him. He also ruled that the detention
policy was null and void and would not be sanctioned by the court
on the ground of procedural irregularity.
This is the most recent of a line of court cases declaring the Hai-
tian program and the detention policy illegal. Prior to that, in
March of 1982, Judge Robert L. Carter in New York found that the
New York version of the Haitian detention program was discrimi-
Very briefly, if I could read from my prepared statement, Judge
Carter described the impact of the Haitian program in New York
in the following way: "Of 86 Haitians whose applications he re-
ceived, [INS District Director] Sava paroled five, all pregnant
women whose condition was an obvious compelling factor. Of 91
non-Haitian applicants, 90 were released and the other returned to
his country of origin after withdrawing the parole request."
In ordering the release of the Haitians in that case, Judge Carter
concluded: "[R]espondent Sava failed to exercise properly the dis-
cretion given him by the statutes and regulations concerning the
parole of excludable aliens, and having discriminated against peti-
tioners because of the race or national origin, the writ of habeas
corpus shall issue."
Even prior to that, Judge James L. King, in an opinion in 1980,
had held the Haitian program nationally constituted at that point
to be illegal.
The decisions of Judges King, Spellman, and Carter all demon-
strate the haste and the design on the part of the administration to
expel Haitian boat people, irrespective of the merits of their
asylum claim, and to deny them entitlements and a fair opportuni-
ty to present their asylum claims.
In particular, we would bring to your attention, Mr. Chairman, a
recent statement issued by the Haitian Government itself. The
Lawyers Committee has been and remains highly critical of the
human rights practices of the Government of Haiti. However, the
statement deserves special emphasis, we believe.
It reads as set forth at page 17 of our prepared statement:
The Haitian refugees are forced by the U.S. Administration to remain in concen-
tration camps awaiting a lengthy hearing process. There is a matter of principle in-
volved. The government of Haiti, along with civil rights and religious groups in this
country, find unacceptable that desperate people be forced by the U.S. Government
to live in confinement while they have committed no crime. Moreover, it is hard to
believe that this is happening in the United States of America and to people whose
fathers have had to die for the freedom and independence of this land.
The condemnation of the discriminatory Haitian detention policy
pursued by this administration is universal.
Additionally, we wish to speak to the suggestion by Mr. Giuliani
and the speculations that he advanced regarding the detention pro-
gram's effectiveness. A number of reasons have been advanced for
the figures presented by the Immigration Service regarding the
recent arrival of fewer Haitians, including the fact that Haitians
are evading Immigration Service inspectors upon arrival, including
the fact that the influx of Haitians in the last 2 years was due to a
land expropriation program by the Haitian Government, which has
now been concluded, and the fact that the Haitian Government,
through its security forces, the Tonton Macoutes, are no longer ac-
tually involved in smuggling Haitians to the United States, for
Whatever the reason, and whatever the speculation as to effec-
tiveness, we submit that it is not sufficient when balanced against
the cruelty and the toll of human suffering that has been taken
upon these 2,000 Haitian detainees. In particular, these 2,000 per-
sons have now been detained for about 1 year. Just yesterday there
were reports by doctors from the National Institute of Mental
Health that those detainees are exhibiting acute depression and
evidencing suicidal tendencies.
The establishment of detention facilities by the Government is
expensive not only in dollars, it is far more expensive in terms of
Furthermore, we wish to point out that the contemplated estab-
lishment of facilities in Virginia and Oklahoma raises problems
that we have already experienced in connection with the represen-
tation of Haitians in Federal facilities throughout the year in
which they have been detained. More particularly, we refer to the
inability to represent those Haitians.
Haitians who are detained and likely asylum applicants have a
right to counsel under the statute. It is a right to counsel, not gov-
ernment benefit. However, Haitians do not have access to counsel
by reason of their detention in remote facilities, such as Ray Brook,
New York or La Tuna, Texas.
Not only do they not have access to counsel, particularly counsel
with an immigration background, but they have no access to expert
evidence, in terms of expert witnesses to support of their asylum
claims, nor do they have access to interpreters to assist counsel in
connection with preparing their asylum claims. A particularly
striking example is the situation in Ray Brook, N.Y., where there
are now 150 people who have been detained for 1 year, but only
two of whom are actually represented by counsel.
Furthermore, I wish to speak to the statistics regarding abscond-
ing that were advanced by Mr. Nelson in connection with litigation
in Florida. The evidence, I am informed by voluntary agencies such
as the United States Catholic Conference, the Church World Serv-
ice of the National Council of Churches, and the Lutheran Immi-
gration and Refugee Service, relates to a period of time in 1980
when Haitians were released irregularly to facilities such as the
Metropole Hotel in Miami. Notices of hearings were sent to that
hotel when Haitians had been resettled elsewhere. The voluntary
agencies have informed me that when Haitians are subject to ordi-
nary, normal resettlement processes, the way other aliens have
been processed by those voluntary agencies, their appearance rates
are good and in line with the appearance rates of all other aliens.
If I may, in one sentence, discuss the Cuban situation. The Hai-
tians, unlike the Cubans, are a quite docile population. The Cubans
have been characterized as dangerous; the Haitians, the consensus
is, are a peaceful, docile population. Indeed, that quality was ad-
vanced as one of the reasons the Bureau of Prisons sought to effect
the transfer of Haitians from New York to Arizona some months
past, in view of the ease with which they could be transferred and
The basis for release applied to all other aliens is whether or not
they pose a security risk or a danger of absconding. We submit
there is no evidence to justify holding Haitians in that connection.
Finally, if I could speak for a moment to the recent release offer
by the Attorney General. This is the plan that we understand will
be presented by the Government today at the court hearing in
Miami, and we wish to address a few aspects of that plan.
The Government plans to offer release to Haitians who are rep-
resented by counsel. Again, bear in mind that many Haitians are
in facilities where they do not have access to counsel and, there-
fore, would be practically excluded from release under those condi-
tions. But assuming that there is counsel, under certain circum-
stances Haitians may be released for a temporary period of time.
The arrangement being that they would be reincarcerated should
they elect to take an appeal from any adverse decision in their
Bear in mind again that Judge King found that the Immigration
Service was very hostile to Haitian asylum claims, and that they
were denied irrespective of their merits. That the Haitians, upon
such a denial before an immigration judge, would be expected to
reenroll in the prison in order to appeal or to seek any review of
the adverse asylum determinations is inappropriate.
We believe that any such condition would not only penalize the
right of the Haitians to review a denial of their asylum claim, by
requiring that they be imprisoned in order to effect that review,
but as well would create an artificial incentive for Haitians to ab-
Haitians have been detained for 1 year. To then give a taste of
freedom to an alien not charged, much less convicted, of a crime,
and then to expect that alien to return to prison to pursue an
appeal, a very lengthy process in our experience, a process, indeed,
of months, if not years, and to face the prospect of that long deten-
tion, can only create an incentive to abscond. Or, more sinisterly, it
may compel a Haitian to return to a territory where he or she is
likely to suffer persecution.
For those reasons, we submit that the release of the Haitians,
should that be offered by the administration, or ordered by Judge
Spellman, be under the same conditions as the release has been
with respect to non-Haitians.
Mr. Chairman, we ask and urge the members of the subcommit-
tee join us in our opposition to the establishment of new detention
facilities and the formalization and institutionalization of this dis-
[The statement of Mr. Helton and attachment follow:]
STATEMENT OF ARTHUR C. HELTON
LAWYERS COMMITTEE FOR INTERNATIONAL HUMAN RIGHTS
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES
AND THE ADMINISTRATION OF JUSTICE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
June 23, 1982
Chairman Kastenmeier, thank you for inviting me
to appear at today's hearing. My name is Arthur Helton.
I am Director of the Political Asylum Project of the
Lawyers Committee for International Human Rights in New
Since 1978, the Lawyers Committee has been a
public interest law center working in the areas of inter-
national human rights, refugee and asylum law. The Political
Asylum Project of the Committee was created in late 1980 to
provide representation to individual asylum applicants in
the United States. The Project utilizes volunteer lawyers
whom it trains and supervises. Since 1978 the Lawyers
Committee has represented more than 250 asylum applicants
from 33 countries. Based on this experience the Committee
has testified in Congress and prepared papers on various
asylum and refugee policy matters.
*/ The preparation of this testimony was assisted by Russell
Schwartz, Regine Dely and Marie-Rose Jean, interns with
the Lawyers Committee.
In the last year, the Committee has devoted
significant time and attention to the problems of Haitian
asylum applicants who have been detained in the U.S.
Specifically, we have undertaken an extensive effort to
recruit, train and supervise volunteer lawyers to represent
Haitains who were originally detained in Miami and then
transferred to an INS detention facility in Brooklyn and
a Federal Correctional facility in Otisville, New York. In
addition, the Committee has served as a clearinghouse for
information and coordinator for various church, community
and legal organizations throughout the country who have
been working on behalf of the Haitians.
Our testimony today examines the Reagan Admin-
istration's detention policy as it has affected Haitian
nationals who arrive in the United States. We have also
been asked to comment on the Administration's request for
funds to construct two new Bureau of Prisons facilities to
house aliens awaiting INS adjudication of their cases.
Based on our experience with and observation of
the Haitians, we strongly oppose the Administration's
unprecedented policy of prolonged mass detention of asylum
applicants. We also object to the discriminatory manner
in which the Haitians have been treated. In a federal court
decision in March in New York, Judge Robert L. Carter ordered
the release of 53 Haitains in Brooklyn who had been denied
parole. In so doing he emphasized:
The conclusion, therefore, is inescapable
that [INS District Director] Sava denied
parole to petitioners because they were
black and/or because they were Haitians.
Laissez-Moi Vigil v. Sava, 81 Civ. 7372,
7371 RLC (S.D.N.Y. 1982) at 32.
THE IMPACT OF DETENTION
UPON THE HAITIANS
The detention policy has been costly, not only
from a fiscal perspective, but also in terms of human
suffering. After more than a year in detention, many of
the Haitians now exhibit various symptoms of physical and
psychological distress. Last Monday,Dr. William G. Prescott,
Director of the Cuban-Haitian Unit at the National Institute
of Mental Health, reported that there have been 29 suicide
attempts or "suicide gestures" among the Haitians in the
last ten weeks. Some of the Haitians have tried to hang
themselves using bedsheets or their pants, others have
attempted to swallow broken glass or to slash their wrists.
In describing the current conditions of the
Haitians, Dr. Prescott noted that government doctors were
...dissociative phenomenon of deper-
sonalization in which the "mind" separates
from the body and sees the body as some-
thing almost inanimate and passively
acted upon by events.l/
Another report, prepared by Joseph Zogby, a
psychiatric social worker for the Department of Health and
Human Services, concluded that many of the detained Haitians
are "becoming hopeless and depressed over their detention."
The conditions of imprisonment, furthermore,
have coerced Haitians into giving up their right to apply
for political asylum in the U.S. Since the detention program
began in the summer of 1981, at least several hundred of the 3,000
detained Haitians who have been detained have gone back to
Haiti. Our government characterizes these returns as cases
of "voluntary departure." It is plain, however, to anyone
involved in these cases,that these departures are anything
but voluntary. One man who returned "voluntarily" earlier
this month told a federal judge:
After 11 months in detention in the United
States, I wish to return to Haiti. My
decision is based on the fact that, over
the past month, I have become very depressed
and ill and have not been able to receive
I wish to state that this decision to leave
in no way indicates a change from my pre-
vious position of fearing political perse-
cution upon return. I fully expect that I
may be mistreated or even killed upon my
return to Haiti. However, I would rather
die in my own country than remain any
longer in prison in the United States
without any indication that I will ever
be released. (Affidavit of Haitian who
While we do not know what has happened or will
happen to all of these people, we know that some have
already been subject to mistreatment at the hands of the
Haitians security forces. One Haitian woman, who is still
in detention, first tried to escape from Haiti in the spring
of 1981. The sailboat on which she and seventy others were
traveling was badly damaged and forced to return to Haiti.
When they arrived on the shore they were met by members of
the Haitian security force, the Tonton Macoutes. Tied with
cords, they were eventually taken to a town called Jean-Rabel,
from where they were taken to a notorious military prison
in Port-au-Prince, the Cassernes Dessalines.
There, ten of the men from our boat were
tied up in front of us. Their pants were
removed and they were put on their stomachs.
Then four guards began to beat them with
sticks as big as my arm. They were beaten so
much that their behinds were bruised and
bloody, and horrible to see.
When we saw that, the women started crying.
The authorities told us that if we did not
stop crying they would beat and kill us.
They told us that we were "kamokin" (opponents
of the regime) who were trying to leave the
country in order to go out to talk against
the government. (Affidavit of Haitian now
Another Haitian who is currently detained in
the U.S., was arrested in late 1980 as he returned to Haiti
from the Dominican Republic. While he was in detention at
the National Penitentiary he witnessed the arrival in late
summer or early fall of 1981, of 15 prisoners who had been
returned from Ft. Allen, Puerto Rico. All had been given
assurances by the Haitian Consul in Puerto Rico that they
would be treated well on their return. Instead,they were
immediately arrested, taken to the Cassernes Dessalines,
and later transferred to the National Penitentiary where:
... they were brought before Col. Albert
Pierre who ordered that several of them
be beaten. Two of these men appeared to
have been hurt very badly. (Affidavit of
In addition, we are aware of cases of "voluntary"
returnees from Ray Brook, New York; Lexington, Kentucky and
Miami, Florida, who continue to receive recent mail from
their immediate families, more than six months after they
have left for Haiti. Additional efforts to gather informa-
tion about the fate of the returnees have been hampered by
the refusal of the Justice Department to make available to
us the names and addresses of those who have thus far re-
turned to Haiti, under the procedure of "voluntary departure."
CHRONOLOGY OF THE DETENTION POLICY
The current policy of detention and other
discriminatory measures against the Haitians can best be
understood against a background of prior governmental
practices, including the 1978 "Haitian Program" which a
federal court in Florida found to be "offensive to every
notion of constitutional due process and equal protection."
Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 532
(S.D. Fla. 1980), aff'd. sub. nom., Haitian Refugee Center
v. Smith, __ F.2d __ (5th Cir., Unit B, 1982).
A. Prior Policy of Release
Prior to the spring of 1981 INS policy was
routinely and regularly to release virtually all aliens
seeking admission to the United States, including Haitian
nationals. In 1958 the United States Supreme Court in
Ma v. Barber, 357 U.S. 185, 190 (1958) explained:
The parole of aliens seeking admission
is simply a device through which needless
confinement is avoided while administrative
proceedings are conducted.... Physical
detention of aliens is now the exception,
not the rule, and is generally employed only
as to security risk or those likely to
abscond.... Certainly this policy reflects
the humane qualities of an enlightened
civilization (citation omitted). 357 U.S.
The liberal release policy is confirmed in government docu-
ments, including INS instructions to its field officers,3
as well as expert testimony in Louis et al. v..Nelson,
Commissioner, Immigration and Naturalization Service, No.
81-1260 Civ. EPS (S.D. Fla., 1982), a national class action
in which a federal court ruled last Friday that the current
detention policy is illegal because it was initiated without
formal rule-making procedures in violation of the Adminis-
trative Procedure Act. Indeed, in the decision, District
Judge Eugene P. Spellman found that:
The new release criteria radically.departs
from the existing practice of regularly
releasing Haitian aliens. It makes detention
the rule, not the exception; and prescribes
very narrow circumstances where parole will
The Court cannot think of any administrative
action that would have a greater impact on
a regulated group of people than a change
in policy which results in their indefinite
incarceration where, under the previous
policy, they would have been free.
Louis et al. v. Nelson, Commissioner, Immi-
gration and Naturalization Service, 81-1260-
CIV-EPS (S.D. Fla., June 1982) at 32.
B. Summer 1981 the Change in Policy
The detention of the Haitians was announced in
July of 1981 by Attorney General Smith as part of a broader
policy that also included the interdiction and forced return
of Haitian boats on the high seas by the United States
Coast Guard. In explaining the new policy, the Attorney
General stated that "detention of aliens seeking asylum
was necessary to discourage people like the Haitians from
setting sail in the first place."
In response to the growing numbers of detainees,
INS officials established temporary court rooms within the
Krome facility in Florida, and sought to expedite the
return of Haitians to Haiti. Mass hearings of Haitians --
including those who had applied for asylum -- were scheduled,
and Haitians were denied access to counsel. These practices
were subsequently declared illegal and temporarily enjoined
by a federal court in late 1981.
C. Transfer of Detainees to Remote Camps
In an apparent response to political pressures
in Florida (the INS had promised the Governor of Florida that
no more than 1,000 persons would be held at the Krome Avenue
Center), as well as a lawsuit filed by the State of Florida
against the federal government,- the INS transferred hundreds
of Haitians from Miami to various locations throughout the
U.S. in July and August of 1981.
Several of the facilities to which the Haitians
were transferred are Bureau of Prisons facilities that are
located in remote areas, such as Ray Brook and Otisville in
New York; Alderson, West Virginia; and Port Isabelle, Big
Spring and La Tuna, Texas.
The transfers introduced a series of new problems
for the Haitians. First, none of the Haitians have ever
been accused, much less convicted, of any crimes. The
decision to place them in federal prisons exacerbated the
existing problems. Second, by placing them in a number of
facilities in remote areas, Haitians were effectively denied
access to family members and friends. Many of the facilities
lack adequate counseling and social service programming, a
problem that is magnified by language difficulties. For
example, there are simply no Creole-speaking people in
La Tuna, Texas or Ray Brook and Otisville, New York.
A third problem relates to the preparation of
claims for political asylum in the United States. Local
legal services are often unavailable in these areas, par-
ticularly counsel with a background in immigration law.
It is virtually impossible to find any lawyers to travel
with interpreters to these facilities. As a result, most
of the Haitians have remained in detention for one year
without ever speaking with a lawyer. The situation at
Camp Ray Brook in New York is illustrative of the current
On July 19, 1981, 40 Haitians were sent to
Ray Brook and subsequent transfers have raised the number
of Haitian detainees there to approximately 150. Upon
transfer to Ray Brook, all Haitians requested counsel. While
they were given lists of lawyers or organizations that provide
free legal services in the area, only three detainees have thus
far been able to arrange for representation.
At least eight of the Haitian detainees have
formally applied for asylum, but the complex forms were pre-
pared by an INS officer who speaks only "some" Creole.
,Despite comprehensive efforts, including inquiries of the
faculty at the State University of New York at Plattsburg, no
potential witnesses who would be able to testify about the
current political and social conditions in Haiti or the
likelihood of persecution upon return to Haiti have been
located. The only potential interpreter located for the
detainees has already been retained as an interpreter for
D. Refusal to Grant Parole to Haitian Asylum
Even for the Haitians who have secured legal
counsel, applied for political asylum, obtained offers of
sponsorship by responsible individuals and private
organizations, and formally requested release on "parole",
detention is the rule. Release requests have been routinely
and almost uniformly rejected. The only exceptions to this
practice have been the occasional release of pregnant women
and those requiring serious medical attention.
Illustrative of the no-release detention policy
applied exclusively to Haitians is the experience of 86
Haitians transferred from Miami to the Service Processing
Center ("SPC") in Brooklyn, New York on July 18, 1981.
Federal District Judge Robert L. Carter described the
impact of the Haitian Program in New York in the following
Of 86 Haitians whose applications he
received, IINS District Director] Sava
paroled five, all pregnant women whose con-
dition was an obvious compelling factor.
Of 91 non-Haitian applicants, 90 were re-
leased and the other returned to his country
of origin after withdrawing the parole
In ordering the release of the Haitians in this
case, Judge Carter concluded:
[R]espondent Sava failed to exercise properly
the discretion given him by the statutes
and regulations concerning the parole of
excludable aliens, and having discriminated
against petitioners because of the race or
national origin, the writ of habeas corpus
Representatives of the Lawyers Committee have
either visited or been in contact with local representatives
at virtually all of the facilities where the Haitians are
now being held. The following section summarizes current
conditions at a number of the facilities.
A. Federal Correctional Institution,
Ray Brook, New York
There are presently 157 men being detained at the
FCI in Ray Brook, New York: All the men are located in a
special section (Unit E). The detainees are segregated
from the rest of the prison facility.
Because of the remote location of FCI, visits
by family and friends have been practically non-existent.
To date, only one detainee has had family members visit him.
Another detainee had relatives come to visit him from Montreal,
Canada. Since they did n6t all have proper identification
and prior approval of the prison officials, his relatives
were denied access.
Very few of the detainees have attorneys. Those
who do, are represented by counsel in New York City and
Miami, an arrangement with obvious limitations.
B. Federal Correctional Institution,
Alderson, West Virginia
There are now 58 women detainees at the.FCI in
Alderson, West Virginia. This is a maximum-security facility.
The women are in a cottage (Old Orientation Cottage). This
cottage is segregated from the rest of the prison with an
eight to ten foot fence. The women are allowed to leave
their quarters for meals and work details.
Recreational programs were provided when the
detainees were first incarcerated; however, such activity has
Though a number of detainees are now ill, medical
care is less than adequate. In a telephone conversation
earlier this week, one detainee told us that when she was
visited by a doctor at the facility he simply told her to
drink more water. Previously, she has been given medication
which made her more ill. Although she complained to the
doctor about her reaction, he continued to give her the same
medication, until she stopped taking it.
Because of the remote location of the facility,
there have been no visits by family members of the detainees.
Although groups such as the Women's Task Force in Washington,
D.C. and various clergy members have been allowed to visit
Alderson, such visits have been restricted by the prison
officials from twice a month to once a month. Further, no
more than two persons from these groups are allowed to visit
the facility at a time.
A Haitian professor at nearby West Virginia
Wesleyan College, has been denied access to the facility to
talk to the detainees. Last week, a Catholic sister who
has been visiting the women with other Haitians was informed
that in order to visit, she must give prison officials two
weeks notice, along with the names'of all of the Haitians who
will be accompanying her. -
There is one particularly disturbing report from
Alderson involving the mistreatment of a Haitian detainee.
In April, she was physically dragged out of her bed, shoved
up against a wall by two prison guards, and subsequently
dragged out of the sleeping area into solitary confinement
where she was held for three days. There is particular con-
cern about her condition, because she had attempted suicide
C. Minimum Security Prison,
There are currently 197 people being held at
Lexington, Kentucky, in a separate building away from the
general prison population. Reports from the facility indicate
that there are limited recreational facilities, and a restric-
tive visitation-policy under which voluntary organizations,
such as the Haitian Refugee Task Force,are being denied entry.
Several of the detainees report that the guards
have threatened to place them in with the general prison
population. At least one detainee was placed with the
general criminal population in early May for five days
for no apparent reason.
One detainee died at Lexington following an
injury during a soccer game. He was hospitalized, x-rayed,
and then sent back to the facility in great pain. He
subsequently requested a doctor but apparently none was
available. We have been unable to determine whether he
died before or after the doctor finally did arrive.
The problems at Alderson, Lexington and New
Orleans are representative of those encountered in the
various Bureau of Prison's facilities where the Haitians
are being held. While the conditions at these facilities
are considerably less onerous than those at the INS facilities,
we do not believe that the Bureau of Prisons should be in-
volved in the incarceration of non-criminal asylum applicants
such as the Haitians.
Today, in Miami Judge Spellman will consider
various plans for release of the Haitians in detention. At
that hearing, the Lawyers Committee and other legal groups
will present a plan for release that we.believe can help to
resolve the current crisis. We ask that a copy of our plan
be included in the record of these hearings.
We oppose the construction of new
detention facilities for asylum applicants and other aliens.
The Haitian Program has served only to inflame racial
tensions in our society, while causing unnecessary suffering
to the 2,000 victims of its discriminatory application. At
the same time, the Program has been extraordinarily expensive
and has caused unnecessary delay in the adjudication of
asylum claims. Denied access to relatives, friends, evidence
and attorneys, most of the Haitians have been unable to even
begin the preparation of their asylum applications.
Mr. Chairman, we submit that this is not an
experience that our country ought to spend additional money
to institionalize. On May 14, 1982, the Haitian Embassy in
Washington issued a "Memorandum on the Refugee Issue." The
Lawyers Committee has been, and remains, sharply critical of
the government of Haiti for its internal human rights practices.
Nonetheless, the language of the Memorandum is so extra-
ordinary that it deserves special emphasis. In its statement,
the Haitian Embassy at page 3 concludes:
The Haitian refugees are forced by the U.S.
Administration to remain in concentration
camps awaiting a lengthy hearing process.
There is a matter of principle involved. The
government of Haiti, along with civil rights
and religious groups in this country, find
unacceptable that desperate people be forced
by the U.S. government to live in con-
finement while they have committed no
crime. Moreover, it is hard to believe
that this is happening in the United
States of America and to people whose
fathers have had to die for the freedom
and independence of this land.
1/ New York Times, June 22, 1982, sec. A at 15,
cols. 3 and 4.
3/ INS Field Inspectors Handbook, ch. 19, secs. 1 & 2.
4/ New York Times, October 23, 1981, sec. 2 at 6, col. 2.
5/ Louis,et al. v. Nelson, Com., INS, et al., No. 81-1260
CiV:ACH (S.D. Fla. 1981).
6/ Graham v. Smith, No. 81-1497 Civ.-JE (S.D. Fla. 1981),
which challenged INS policy on environmental grounds and
claimed that overcrowding at Krome was creating unsanitary
conditions and a public health hazard.
7/ Affidavit of Stanley Mailman, Esquire, in support of
motion to change the venue of the exclusion proceedings
of the Haitians from Ray Brook, sworn to on August 14,
8/ Vigilie, et al. v. Sava, et ano., 81 Civ. 7372, 7371
(S.D.N.Y.) March 5, 1981) at 26.
9/ Id. at 37.
The Lawyers Committee for International Human Rights
36 West 44th St., New York, New York, 10036 (212) 921-2160
Marvin E. Frankel
300 Park Avenue
New York. New York 10022
BOARD OF DIRECTORS
Maureen R Berman
Robert L Bernstein
G. Lukongwa Binaisa
Merrell E Clark. Jr.
Wayne D. Collins
Michael t Davis
Adrian W DeWind
Fr. Robert F Orinan-
Bruce J Ennis
R Scott Greathead
Virginia A Leary
Barbara A Schatz
Orville H Schell
Jerome J Shestack
James R SOlkenat
June 21, 1982
Michael H. Posner
TO: Interested Lawyers and
Arthur C. Helton
Political Asylum Project
RE: Need to Represent Detained Haitians
I am writing in connection with a recent
decision by a federal district court judge in Miami
that has created a critical need for pro bono
representation with respect to about 2,000 Haitians
now detained at various locations around the country,
including New York. We believe that a concerted
effort by the private and public interest bar will
meet the need and we are asking for your, your firm's,
or your organization's assistance in that connection.
I. Judge Spellman's Decision and the
Class of Persons Affected
On June 18, 1982, United States District Judge
Eugene P. Spellman ruled in a national class action
that the governmental policy implemented in the summer
of 1981 to detain all undocumented Haitians who arrived
in the United States was not adopted in accordance with
the requirements of the Administrative Procedure Act.
Louis, et al. v. Nelson, Commissioner, Immigration and
Naturalization Service, et al., Case No. 81-1260-CIV-EPS
(S.D. Fla. 1982). In particular, the failure to give
interested persons notice and an opportunity to comment
on the new detention policy, and thereafter to promulgate
that policy in the Federal Register prior to its
implementation, was held to render the new detention
rule "null and void". The court explained that it "will
not sanction enforcement of ... the] new detention
policy". Id. 41, 42. Judge Spellman's order directs
that a hearing be held at 2:00 p.m. on Wednesday, June
23, 1982, "... for the purpose of determining the effect
of this Court's ruling, the remedy to be afforded
Plaintiffs, how that remedy is to be effected and the
extent to which this Court should retain jurisdiction
over this cause."
The class covered is composed of all
unrepresented Haitian nationals who have been placed
under exclusion proceedings and who have been imprisoned
by the Immigration and Naturalization Service in
connection with the invalid detention rule. The class
numbers upwards of 2,000 people, and they are currently
at various Immigration Service detention facilities
around the country, including Ft. Allen, Puerto Rico;
Brooklyn, New York, as well as Bureau of Prisons
facilities in Otisville and Ray Brook, New York;
La Tuna, Big Springs, Texas; Lexington, Kentucky; and
Morgantown and Alderson, West Virginia.
II. The Posture of the Administrative
Proceedings Concerning the Class Members
The detainees are subject to exclusion
proceedings under Sections 235 and 236 of the Immigration
and Nationality Act. They have a right to counsel at
no expense to the government under Section 292 of the
Act. They are also eligible to apply for political
asylum in the United States under Section 208 of the
Act upon a showing of a well-founded fear of persecution
on account of race, religion, nationality, membership in
a particular social group or political opinion. The
procedures for requesting asylum include preparing and
submitting a formal written application, and an evidentiary
hearing before an immigration judge. They also have a
right under the regulations to appeal an adverse decision
by the immigration judge to the Board of Immigration
Appeals in Washington, D.C.
III. The Release Plan
In anticipation of the implementation of
Judge Spellman's decision at the hearing on June 23,
a number of legal organizations and voluntary agencies
have discussed arrangements for the release of the
detained Haitians. The Lawyers Committee believes
that the voluntary agencies who would be responsible
for sponsoring and resettling the Haitians on an
interim basis, including the Church World Service of
the National Council of Churches, the United States
Catholic Conference, and Lutheran Immigration and
Refugee Service, should initially identify the
locations where the detainees can be sponsored. This
presumably would include major urban areas in the
Eastern and Central United States, such as New York
City, where there are communities of Haitians and
family available to assist the detainees. With the
assistance of such organizations as the American Bar
Association, lawyers should be recruited in these areas
to represent the Haitians in exclusion proceedings,
includingan appeal, if necessary, to the Board of
IV. Training and Administration of the Plan
The Lawyers Committee will commit itself to
providing training and practice materials to lawyers
who represent Haitians. This will include oral
presentations and written materials concerning political
conditions in Haiti, preparing a formal asylum request,
preparing and conducting a hearing before the
immigration judge, locating potential expert witnesses,
and preparation, when necessary, of an appellate brief
to the Board of Immigration Appeals. A series of three
one-day sessions would be held on the following subjects:
(1) conditions in Haiti and preparation of the asylum
request; (2) preparation for hearings, including
locating potential expert witnesses; and (3) preparation
of an appeal to the Board of Immigration Appeals.
Outlines of similar presentations by the Lawyers
Committee are attached.
Since July of last year, the Lawyers Committee
has coordinated the representation of 86 detained
Haitians who were transferred to Brooklyn from Krome
in July of 1981. We recruited, trained, and supervised
about 35 lawyers in preparing and submitting formal
political asylum requests, and presenting the cases
at the hearings and on appeal.
While the representation of an alien in
exclusion proceedings is a relatively straightforward
affair, it does require a definite commitment of
attorney time. In our experience, an initial investment
of about 15-20 hours to prepare an asylum request, 10-20
hours to prepare for and conduct a hearing, and 10-15
hours to prepare an appeal is not unusual, often over a
period of several months. Oral argument can be requested
on the appeal. While the undertaking is serious, we are
committed to making it feasible.
We hope that you, your firm, or your
organization will assist in meeting this critical need
for representation. Please feel free to call me to
discuss these matters.
OUTLINE OF PRESENTATION ON SUBSTANTIVE
AND PROCEDURAL LAW OF POLITICAL ASYLUM
Arthur C. Helton
I. The substantive standard and definition of a refugee:
A. The alien must be outside the country of nationality.
B. The alien must be unable or unwilling to return to
(or unable or unwilling to avail himself or herself
of the protection of) the country of nationality
because of persecution or a well-founded fear of
1. Need for a subjective state of mind and an
objective, external situation.
C. Such persecution must be on account of race, religion,
nationality, membership.in a particular social group,
or political opinion.
1. Discrimination or punishment can constitute
2. Unauthorized stay outside country of origin can
3. Persecution may be economic in form.
4. Persecution may be practiced by agents of a
formal government which tolerates such persecu-
tion, or which fails to protect against such
5. Mere membership in race, religion, or social group
is ordinarily not sufficient.
D. Refugee status is not available to any person who has
been involved in the persecution of another.
II. Eligibility to request asylum:
A. Physical presence in the United States or at a land
border or port of entry is required.
B. The alien must be classified as a refugee.
C. Documentation (passport/visa) is not necessary.
III. The asylum application is adjudicated by the District
Director, or by the Immigration Judge in exclusion and
IV. The burden of proof is upon the asylum applicant.
A. The importance of documentation.
V. Employment authorization and advance parole in order
to travel abroad during the pendency of the asylum
application is available.
VI. The need for an advisory opinion from the Bureau of
Human Rights and Humanitarian Affairs of the Department
VII. The applications must be denied if alien has been firmly
resettled in a foreign country, has been convicted of a
serious crime, if there are reasons to believe that alien
has committed a serious non-political crime outside the
United States prior to arrival, or if there are grounds
to believe that alien poses security risk.
A. Firm resettlement includes resident status or
citizenship in the country in question.
VIII. The application may be denied upon an outstanding offer
of resettlement by a third nation where the applicant
will not be persecuted.
IX. Asylum status can be terminated upon a change in circum-
stances in the country of origin, or if the asylee poses
a security risk or is convicted of a serious crime.
X. Upon being granted asylum status, and assuming certain
other prerequisites are satisfied, after one year
of physical presence in the United States, the alien is
eligible to apply to become a permanent resident.
OUTLINE OF PRESENTATION
REQUEST FOR ASYLUM AND SECTION 243(h)
RELIEF IN EXCLUSION PROCEEDINGS
I. Exclusion proceedings and asylum procedure in that connection
/8 U.S.C. 1225, 1226, and 1227; 8 C.F.R. Parts 208, 235,
736; Litigating the Asylum Case/;
A. Venue ./Matter of Alphonse, Int. Dec. 2892 (B.I.A. 19811/.
B. Simultaneous translation Tejeda-Matia v. INS /626,
F.2d 721 (9th Cir. 19801/.
C. Voir dire to determine competency or bias of inter-
D. Subject matter jurisdiction letter to District
Director /8 C.F.R. H 208.1 and 236.2/ improper
classification for exclusion where alien has "entered"
the United States.
E. Personal Jurisdiction /8 C.F.R. 235.6/, including
F. Discovery-depositions /8 C.F.R. 236.2(d) and
242.14(e); Litigating the Asylum Case/
G. Subpoenas /8 C.F.R. 287.4; Litigating the Asylum
H. Burden of proof /8 C.F.R. 208.5/
1. Fact witnesses
2. Expert witnesses
3. Documentary submissions
I. Place to which deported /8 U.S.C. 1227(al/
OUTLINE OF BIA APPELLATE PRACTICE ISSUES
I Completeness of transcript (8 C.F.R. 0 3.5).
A. Incomplete transcription. Matter of Charles,
Int. Dec. 2591 (BIA 1977) [remand for correction
of record deficiencies].
B. Reconstruction of record.
C. Inaccurate translations that necessitate
D. Inaccurate transcriptions.
E. Alterations by immigration judge.
F. Motion to reopen and reconsider (8 C.F.R. 103.5).
II Time to submit a brief (8 C.F.R. 236.7 (b)).
III Brief to be submitted in triplicate within the time
allowed by the immigration judge or the BIA (8 C.F.R.
IV Digest the record.
V Statement of Facts:
B. Record cites
C. Avoid argument.
A. Demonstrate prejudice of error in application
of general legal principles to particular facts
VII Practice material:
A. Modify to suit case.
VIII Oral Argument
Mr. KASTENMEIER. Thank you, Mr. Helton.
Is your position the same or different in any respect from that of
Mr. Ennis, speaking as a member of the ACLU Board of Directors?
Mr. HELTON. I think they are complementary positions.
Mr. KASTENMEIER. Complementary insofar as they don't cover
quite the same ground but do not differ from one another?
Mr. HELTON. That is correct.
Mr. KASTENMEIER. Mr. Ennis presumed to speak only to matters
of procedure and not as to general policies, but I take it your orga-
nization does go to policies, immigration policies and the like.
Mr. HELTON. That's correct. We think that immigration policies
are necessarily implicated in the detention plan and the establish-
ment of facilities in connection with that plan on the part of the
administration. We speak to the underlying policies in that connec-
Mr. KASTENMEIER. Have you both said that the attitude of this
administration and I take it probably the former administration is
a continuum of policies with respect to the Haitians? Has this
policy predated the Reagan administration coming to power?
Mr. ENNIS. Judge King's decision was in 1980, and based on facts
Mr. KASTENMEIER. Is there no real distinction between the last
two administrations with respect to the policies of the INS and the
Department of Justice, with respect to Haitians?
Mr. ENNIS. Except the Reagan administration now is going to
meet their administrative difficulties by getting Congress to give
them greater powers to summarily decide these cases without any
judicial appeal. I am not sure the former administration could have
been equally tempted. They might have been.
Mr. HELTON. If I could add to. that, one variation of policy that is
attributable to this administration is the detention policy, and that
is the focus of our comments today.
Mr. KASTENMEIER. Yes, and it is actually the focus of this hear-
You say that is different, that it is the policy of this administra-
tion to detain?
Mr. HELTON. That's correct. That was initiated in the summer of
Mr. KASTENMEIER. The purpose of the policy, as you see it, has it
been made explicit or are we only to infer purposes, to wit, to dis-
suade persons from other nations from coming here by virtue of
the information they receive, that they will be badly treated once
they arrive in the United States?
Mr. HELTON. That rationale for the policy has actually been ad-
vanced in comments by Government officials.
Mr. KASTENMEIER. This is not exactly on point but is parentheti-
cal, but one of the reasons, when people ask why the determina-
tions as to status are taking so long, some of these people may hope
to have their status resolved so that they may remain, and others
might be prepared to go back. We are told that their lawyers, who
presume to represent the Haitians, are protracting the proceedings,
and in so doing are making any form of expeditious conclusion on
these determinations of status virtually impossible to reach.
Would you disagree with that statement?
Mr. HELTON. I would disagree. I think the problem should be
seen in terms of access at the very outset to counsel, particularly in
terms of the remote facilities where Haitians have been transferred
to. Haitians, frankly, have not had an opportunity to talk to law-
For those Haitians who are represented, perhaps less than 10
percent of the 2,000 detained, lawyers have proceeded expeditious-
ly. Frankly, I believe the delays are attributable to Immigration
and Naturalization Service procedures and handling.
One particular example I can advance in that connection is in
New York City, where the Lawyers Committee has been coordinat-
ing the representation of approximately 53 detained Haitians.
After they arrived in July, they were represented as soon as
August of 1981. Hearings were held expeditiously throughout the
fall and winter of 1981. Many decisions were issued denying claims
for asylum in December of 1981 and January of 1982. The aliens
appealed to the Board of Immigration Appeals, as they have the
right to do, and for the most part transcripts of those hearings
have not yet been received by the lawyers. Indeed, approximately
15 of the about 40 Haitians who have their claims denied have now
received transcripts for purposes of preparing -an appeal to the
Board of Immigration Appeals.
I think that it is very important for all parties concerned to un-
derstand that counsel is not a magical solution to the problem of
detention, and that once a lawyer appears and proceeds with the
exclusion case and the appeal and review, if appropriate, that it is
a process that takes months and not, untypically a year or more to
conclude. To detain persons during that period of time is
unconscionable in our view.
Mr. KASTENMEIER. Mr. Ennis?
Mr. ENNIS. Mr. Chairman, this itch to detain people while their
proceedings are going on is nothing new in the Department of Jus-
tice. I recall, for example, in 1952 I represented a man of some no-
toriety, Serg Rubenstein. They served a warrant on him to deport
him for having been convicted of a crime-evading the draft. There
was some question as to whether that was the kind of offense
which required deportation.
When they served the warrant, they wanted to pick him up and
hold him during the proceedings. The only grounds-you see, the
law says that the Attorney General, at his discretion, can hold a
person during a deportation proceeding. But he is supposed to exer-
cise his discretion on the basis of whether the person would be dan-
gerous to others in the community. Well, I had to go to the Court
of Appeals of the District of Columbia for the court to tell the At-
torney General, "Look, this man is trying to stay in this country.
He has no place to go. The idea that, living in his mansion in New
York City, that he wouldn't appear for a hearing is just sheer non-
sense." I had to go to the court of appeals to get an opinion to
advise the Attorney General that he has to use his discretion sensi-
bly. They have this itch to detain people while their proceeding is
going on. Why? Maybe it will discourage them and they'll leave
without getting a final determination.
Mr. SHAW. Mr. Chairman, could you yield on that point?
Mr. KASTENMEIER. The gentleman from Florida.
Mr. SHAW. I believe the law, Mr. Ennis-and correct me if I'm
wrong-not only says it's a question of whether he is going to be a
danger to the community, but it also speaks to the question of
whether he is going to show at the hearing, doesn't it?
Mr. ENNIS. Right.
Mr. SHAW. The person being incarcerated can be held for pur-
pose of assurance that he is going to be at the hearing?
Mr. ENNIS. That's correct, yes.
Mr. SHAW. This is the point that you addressed in your testimo-
ny. You prejudged the Government's experiment that they an-
nounced this morning, saying they are not going to show.
Mr. HELTON. Mr. Shaw, I was raising what I believed to be prob-
lems with the offer and plan being presented by the Government in
terms of, frankly, prejudging or insuring that there will be a
higher-than-ordinary absconding rate.
Mr. SHAW. I agree with you. I think there will be, and I think
incarceration is probably going to add to the problem of having
them show. However, I think what the Justice Department has to
look to, and I think what we here in the Congress have to look to
in dealing with these problems, is whether the law of this country
is, indeed, going to be followed regardless of whether it requires the
incarceration. I have seen these camps, and I have talked to these
people. They are a docile people, a peace-loving people. They want
nothing for themselves but a better life and a job. Your heart goes
out to these people.
But I think you could be speaking to 90 percent of the world
using that same argument. It's a tough situation. If you make deci-
sions in this area being guided by your heart and your love for
human beings, I think you are going to make a decision that is not
going to be in the best interests of the American people, and that is
to preserve what we have in a very selfish way, admittedly. But I
think this is where the line is drawn and it makes it a very diffi-
cult thing to deal with.
Mr. HELTON. There is no doubt that it is a difficult enterprise.
Our real problem is that there is a different procedure or policy
being implemented with respect to the Haitians than as to others,
and we believe the proposed establishment of detention facilities is
an institutionalization in furtherance of that policy. That is our
Mr. KASTENMEIER. I think I understand that.
To be sure, this question is difficult to approach in isolation, be-
cause of the overwhelming nature of the problem of the status of
millions of persons who are not citizens of the United States. You
always return to the questions of who shall come to the United
States-I guess this would be for the immigration subcommittee-
and how shall they come and what shall happen to them?
As to what shall happen to these people, as I understand your
principal point, it is that they must be treated as other persons
similarly situated are treated, to wit, they ought not be incarcerat-
ed, as other foreign nationals are not incarcerated.
Finally, as far as attorneys are concerned, are there any concert-
ed efforts, either by the Government or volunteer organizations, to
either provide or recruit attorneys for these persons or other
Mr. HELTON. Yes, Mr. Chairman. Our essential position is that
Haitians should be treated as other similarly situated aliens are.
In that connection, however, the Laywers Committee has taken a
lead role in exhorting other responsible legal organizations, includ-
ing the American Bar Association, American Civil Liberties Union,
and the NAACP Legal Educational and Defense Fund, to assist, if
appropriate, in further exhorting their members and affiliates to
provide counsel to Haitians who have been resettled in communi-
ties, where there are Haitians available to interpret and to assist
counsel in preparation of the case, where Haitians have been spon-
sored by responsible voluntary agencies along the lines I have men-
tioned before, and then to proceed, if appropriate, with representa-
tion and hearings, under circumstances essentially the same as
those that obtain with respect to other nationalities, and without
the kinds of preconditions and limitations being proposed by the
Mr. KASTENMEIER. I can't resist the temptation to avail myself of
Mr. Ennis' long experience in the field to historically ask a ques-
tion. I am intrigued by your comment that in World War II, other
than the Japanese-Americans, Axis nationals were handled with-
out the form of incarceration which is suggested here.
I take it the history of the experience has been somewhat uneven
on that point. What I am asking is, at what point does the Bureau
of Prisons get involved with respect to illegal aliens? How long does
Mr. ENNIS. I think the Bureau of Prisons has only gotten into
the detention of aliens since the numbers increased in the last few
Mr. KASTENMEIER. I remember visiting, as I indicated to him, the
San Diego Metropolitan Correction Center about five years ago,
and they were detaining Mexicans in that modern facility.
Mr. ENNIs. Right.
Mr. KASTENMEIER. I remember that very clearly. I assumed that
this had been going on for many years, but I do not know.
Mr. ENNIS. I don't know when it started.
Mr. KASTENMEIER. Is it your view that whenever and for what-
ever period detention may be appropriate of aliens, one to three
days or otherwise, that the Bureau of Prisons should not be the
governmental agency handling them, or are we just talking about
one bureaucracy versus another?
Mr. ENNIS. I think, preferably, the Immigration and Naturaliza-
tion Service should handle all of this detention, and the Bureau of
Prisons should be left to their job of dealing with convicted crimi-
nals. In the Immigration Service we detained 9,000 to 10,000 alien
enemies during World War II, all manned by Immigration Service
personnel. There was no problem.
Mr. KASTENMEIER. Why on May 25 do you think the administra-
tion changed its mind and decided to assign this task in the short
and long term to the Bureau of Prisons? Perhaps you have no clues
on that point.
Mr. ENNIS. Well, I think two things. One, they may think it more
efficient to have aliens detained at what they call at-what is it, a
WTC, a WCI-at a correction institution. Also, I think, more practi-
cally, by combining it with a department of prisons thing, they can
place it out in the country. You see, we usually place prisons out of
large municipal areas. We use detention centers for trials and all
that. But when a person is convicted, he is sent out to a prison. Of
course, it is very neat, if you attach these aliens-You say you're
going to have a couple of thousand beds for Haitians, and we will
have them at a department of prisons facility, and then happen to
be at Petersburg and El Reno, Okla.
That shouldn't be. Aliens should not be detained in areas like
Mr. KASTENMEIER. Are we seeing an evolution here of policy,
that the Bureau of Prisons is taking over the handling of aliens at
more or less points of entry, and now another change taking place,
where the Bureau of Prisons will take charge of aliens in long
terms in remote places?
Mr. ENNIS. That's what it looks like to me.
Mr. KASTENMEIER. Is this change suggestive of some rather unde-
sirable policy in terms of American treatment of aliens in the long
Mr. ENNIS. I think it is very undesirable to mix aliens held for
immigration hearings with convicted criminals, even though they
say they have them in a separate building or on a separate floor of
the building. The administration of them, the custody of them, the
rules governing the custody, are all the same. They should not be
placed under the same management and prison-minded officials
dealing with convicted criminals; the aliens awaiting determination
of their status should not be placed under that kind of custody.
Mr. KASTENMEIER. Playing the devil's advocate, should the De-
partment of Justice or the Department of State or the INS dis-
suade people from coming to the United States? Is it only a ques-
tion of the techniques they use to dissuade, or should they be able
to dissuade various prospective entrants into the United States who
may come in in large numbers and constitute a problem? Should
they dissuade them as a matter of policy?
Mr. ENNIS. Yes; I think you should dissuade aliens from coming
in violation of our immigration laws. We have quotas, we have
preference on the quota. We have people wait abroad for their
quotas. Of course, we should try to dissuade people from breaking
What has happened in this case, I personally think, is that we
either instigated or welcomed the first wave of Cubans. The Hai-
tians saw that. People come here without papers and a law is
passed making them all a part of our country. It is almost irresista-
ble, if you live under the desperate poverty of the Haitians, to try
and get in on the act. Of course, they have now learned by this de-
tention policy, which I think is unconstitutional and inhuman, that
perhaps one shouldn't try to enter the United States that way.
Mr. HELTON. Mr. Chairman, if I could just add one concern.
There is a serious danger we feel in terms of dissuading alien en-
trants, when the techniques chosen or the coercion utilized actually
dissuades bona fide refugees, persons fleeing from political repres-
sion, as many of the Haitians have.
It is a testament to the fact of their fear of persecution that they
have remained as long as they have in the United States. They
have actually, for the most part, elected to remain a year in deten-
tion rather than to return to Haiti to face what awaits them there.
If the techniques utilized by the government would dissuade those
kinds of claims, it is our view that the United States would then
violate its own and international law.
Mr. ENNIS. Yes; I was speaking about people outside the country.
Mr. KASTENMEIER. Yes, and so was I. Because one of the justifica-
tions, at least if not publicly claimed, is nonetheless suggested pri-
vately, that something must be done; otherwise, hundreds of thou-
sands more people will come and we won't have room for them and
we will have additional problems and everything else.
We have had, I suppose, small waves from Hungary and, of
course, a very large wave from Southeast Asia--
Mr. ENNIS. Yes; 32,000 from Hungary in 1956.
Mr. KASTENMEIER. Right. So one can only contemplate that if
Mexico should ever, in fact, become a Communist or Marxist state,
and we have 15 million Mexicans coming across the border claim-
ing to be political refugees, we apparently would be obligated to
accept them, no questions asked.
Mr. ENNIS. Perhaps we should have left the Marines in the Halls
of Montezuma; then we would have the States of Mexico and all
that beautiful oil, and a lot of American citizens of Mexican birth.
I don't think that solution is available.
Mr. KASTENMEIER. One of my problems is that I think we are
almost captives of our own discriminatory refugee problem. It sug-
gests that the people from El Salvador are probably not political
refugees when, in fact, they probably have the strongest claim of
anybody as refugees from death squads. But because we tend to
align ourselves with such regimes as that in power, we discrimi-
nate not only racially but I think politically in an unacceptable
way which I suspect leads some of us almost to suggest we ought
not have a political refugee policy. We probably ought to reconsti-
tute the whole thing in some other, more equitable terms, if we
can't deal fairly with people on the basis of race or political persua-
sion. But I am not sure we will ever come to that.
In any event, it is the narrow question to which you have ad-
dressed yourselves. I guess I am sorry we didn't have you as the
first witnesses rather than the second. But this is day one of these
hearings and the subcommittee is indebted to you both for your ap-
pearance this morning.
Mr. ENNIS. If we can be of any further help, we would be happy
Mr. KASTENMEIER. I appreciate it.
Thank you, Mr. Ennis, and Mr. Helton.
Mr. HELTON. Thank you, Mr. Chairman.
Mr. KASTENMEIER. The committee stands adjourned.
[Whereupon, at 1:15 p.m., the subcommittee was adjourned.]
APPENDIX 1.--LEGISLATIVE AND BUDGET MATERIALS
LEGISLATIVE HISTORY H.R. 6863
H.R. 6863.-Appropriations, Supplemental Appropri-
ations Act, 1982. Reported from Appropriations July
27, 1982; Rept. 97-673. Union Calendar. Passed House
July 29, 1982. In Senate, referred to Appropriations
Aug. 2 (Legislative day of July 12), 1982. Reported Aug.
3 (Legislative day of July 12), 1982; Rept. 97-516. Con-
sidered Aug. 9, 10 (Legislative day of July 12), 1982.
Passed Senate amended Aug. 11 (Legislative day of
July 12), 1982. Senate asked for a conference Aug. 11
(Legislative day of July 12), 1982. House agreed to a
conference Aug. 12, 1982. Conference report filed in
the House Aug. 13, 1982; Rept. 97-747. House agreed to
conference report Aug. 18, 1982. House receded and
concurred in Senate amendments Nos. 1, 3, 4, 5, 8, 10
thru 13, 15, 18, 19, 21, 22, 37, 44, 47, 49 thru 51, 55, 57,
59, 67, 74, 83, 88, 89, 93, 96, 100, 103, 107, 108, 114, 120,
121, 123, 124, 126, 128, 135, 137, 140, 143, 145, 146, 151,
153, 166 and 178 Aug. 18, 1982. House receded and
concurred with amendments in Senate amendments
Nos. 2, 6, 17, 24, 41 thru 43, 45, 58, 60, 62 thru 66, 69,
84, 86, 91, 97, 98, 112, 117, 119, 132, 138, 149, 161, 172,
177, 180, 182 and 183 Aug. 18, 1982. House insisted on
its disagreement to Senate amendments Nos. 115, and
150 Aug. 18, 1982. Senate agreed to conference report
Aug. 20 (Legislative day of Aug. 17), 1982. Senate
agreed to House amendments to Senate amendments
Nos. 2, 6, 17, 24, 41 thru 43, 45, 58, 60, 62 thru 66, 69,
84, 86, 91, 97, 98, 112, 117, 119, 132, 138, 149, 161, 172,
177, 180, 182 and 183 Aug. 20 (Legislative day of Aug.
17), 1982. Senate receded from its amendments Nos.
115 and 150 Aug. 20 (Legislative day of Aug. 17), 1982.
Vetoed Aug. 28, 1982. In House, passed over Presiden-
tial veto Sept. 9, 1982. In Senate, passed over Presiden-
tial veto Sept. 10 (Legislative day of Sept. 8), 1982.
Became Public Law 97-257 without approval Sept. 10,
COMMUNICATION FROM THE PRESIDENT
THE WHITE HOUSE
may 25, 1982
The Speaker of the
House of Representatives
I ask the Congress to consider requests for supplemental
appropriations for fiscal year 1982 totaling $83,083,000 and
amendments to the request for appropriations for the fiscal year
1983 totaling $341,000.
The details of these proposals are set forth in the enclosed
letter from the Director of the Office of Management and Budget.
I concur with his comments and observations.
DEPAPCM'S CP JDM-CZ
PEEAL FcSCH 818
Buildings a 'Tacilities
Por an additional amount for "Bildings and facilities, $56,500,00 i ingl
S5,000,C00 for construction of facilltie for the detention of lel ens~.
This proposed supplemental appropriation vould provide resources to improve
security at the Metropolitan Correctional Center (=CC) in Mismi, 7lorida. The
proposed supplental lang~ug provision vould-allow the c6nstructicm of two
facilities to detain illegal aliens. This proposal vould increase 1982 outlays
by 0O thousand.