October 12,
2001
This is an unverified transcript of the full and complete proceedings of the U.S. Commission on Civil Rights in the matter of its “Briefing on Boundaries of Justice: Immigration Policies Post-September 11th.”
CHAIRPERSON BERRY: The last panel consists of government officials who will enlighten us. We would ask Owen Cooper, general counsel of INS, to come forward; David Venturella, deputy assistant commissioner for Detention & Removal of INS; and Joseph Langlois, director of the Asylum Division of INS; Mr. Samuel Podberesky, assistant general counsel, Aviation Enforcement and Proceedings, DOT; and Fanny Rivera, assistant administrator for civil rights, FAA.
If you will come forward.
VICE CHAIRPERSON REYNOSO: Thank you very much. I’ve been given the list. And the first person on the list is Mr. Cooper, who I understand has a more general statement about policies of the INS. And then we will meet Mr. Venturella and Mr. Langlois.
Please proceed.
MR. COOPER: Good afternoon.
VICE CHAIRPERSON REYNOSO: And thank you all for coming.
MR. COOPER: Good afternoon, Commissioners. My name is Bo Cooper, and I’m the general counsel of the Immigration and Naturalization Service. And I’m very grateful for the chance to come to your meeting today and to speak on behalf of the Immigration Service. I noted in reviewing transcripts of earlier hearings that the Commission has conducted on immigration matters the suggestion that I think that Commissioner Wilson had advanced. And I’d note, gratefully, that the chair has accepted the INS being invited to appear and to discuss these matters; and I think that’s a very smart idea. Because these issues—the issues that arise in nearly any immigration discussion—are ones that generate the strongest of feelings from people who view the issue from many different angles. And they are issues that are never as simple as they’re often portrayed to be. But they’re issues that are at the very heart of what our country is, how we view ourselves, and how we move ahead as Americans; and, therefore, ones that I think are best discussed in light of the best possible information. And so I and my colleagues will try very hard to provide you with the best information that we can today.
I’d like to talk to you about some of the major issues that the INS has dealt with over the past couple of years, and to place them in the context of the principle that has driven our work both before and since September 11.
It’s the INS’ job to administer one of the very most open national immigration systems in the world, if not “the” most open; and to do so in a way that’s germane and efficient but that also enforces the rules that govern who it is, who’s invited to come into the country from abroad, and in a way that helps safeguard the national security.
And we’ve taken great pangs not to forsake that former goal for the latter sets of goals that I described. And I’d like to address in particular the conclusions that the Commission seems to be drawing in previous discussions at the INS. I think it was very wise to inquire into institutional cultures, but I’d like to address the Commission’s conclusion that the INS seems to have a culture that’s only of law enforcement and that is only geared toward keeping people out of the United States and not permitting those in. And I’d like to note briefly some of the policy developments and activities of the INS over the last couple of years as examples that might help to dispel the impression that the INS views itself only as a law enforcement agency and has a culture that’s attuned only to keeping people out of the United States.
Here are some of those examples.
In the past couple of years the INS has issued an extensive set of guidelines to its operational decision-makers around the country to try to help them to exercise prosecutorial discretion in a way that fulfills the mandates of the immigration statutes that Congress has passed and that governs the country, but that also can help in appropriate cases to alleviate undue hardship that can result from the strict application of those laws.
We have published proposed regulations that would alter the way in which the refugee definition is applied; in particular, what it means to be a member of a particular social group—regulations that if they proceed to final rules under the procedures of the Administrative Procedure Act would expand, to a great extent, the way that gender-based claims and claims based, in particular, on domestic violence can be accommodated within the refugee definition under the laws of this country. That would put the INS in the company of only a small handful of states party to the refugee conventions around the world that recognize such claims in the way that’s proposed by the regulation. This is an INS initiative.
We’ve implemented a system for receiving claims under the convention against torture that’s more transparent and open and accessible than any such system that I’m familiar with around the world among the parties to the United Nations’ Convention Against Torture. And we undertook a great deal of study of various national systems when we were trying to put ours in place.
We’ve implemented the Legal Immigration and Family Equity Act and its amendments, including a temporary extension of Section 245(i), which would allow eligible persons to adjust their immigration status without having to leave the country under the normal rules. It would include a temporary non-immigrant status—a V status it’s called—for spouses and for minor children of lawful permanent residents who’ve been waiting for more than three years for an immigrant or long-term visa; a temporary visa, called a K visa, for spouses of United States’ citizens and their children living abroad; and a legalization application period for class members of what are called the “late amnesty lawsuits.”
We’ve implemented the Child Citizenship Act, which allows most foreign-born children adopted by U.S. citizens to automatically acquire U.S. citizenship on the date they immigrate to the United States. And we’ve been assigned primary responsibility within the Department of Justice for implementing many of the key provisions of the Victims of Trafficking and Violence Protection Act. We’ve been charged with developing regulations for the protection of trafficking victims while they’re in federal custody—
CHAIRPERSON BERRY: You have one more minute, Mr. Cooper.
MR. COOPER: Okay, thank you.
CHAIRPERSON BERRY: There will be plenty of questions.
MR. COOPER: Okay, good.
—for providing victims access to information that might affect their status. We have extended temporary protected status for nationals of Nicaragua, Honduras, El Salvador, Montserrat, the Sudan, the Sierra Leone, Burundi, Somalia and Angola.
These are just some of the things that we do that are quite contrary to what would take place in an agency that’s attuned only to keeping people out.
I see that my time is just about up, and I understand there will be a lot of questions on, for example, our law enforcement efforts in the wake of September 11. I’ll try my very best to answer those as well as possible. But I’d like to just close by noting on behalf of Commissioner Zeigler, who was unable to attend today because of a commitment on the Hill, a statement that he gave yesterday before the Senate Appropriations Subcommittee on Treasury and General Government. This is what Commissioner Zeigler said.
“It’s been said that after September 11 everything has changed. I hope that is not true. America must remain America—a symbol of freedom and a beacon of hope to those who seek a better life for themselves and their children. We must increase our security and improve our systems, but in doing so we must not forget what made this nation great—our openness to new ideas and new people, and a commitment to individual freedom, shared values, innovation, and the free market.
If in response to the events of September 11 we engage in excess and shut out what has made America great, then we would have given the terrorists a far greater victory than they could have hoped to achieve.”
And with that, I’d like to try to answer any questions you have. Thank you.
CHAIRPERSON BERRY: All right. We will hear from the others, and then we will have the questions. Thank you, Vice Chair.
Mr. Venturella, please.
MR. COOPER: Yes, ma’am, Madam Chair. My colleagues, Joe Langlois, who’s the director of Asylum, and David Venturella, who’s from our Detention and Removal section, have joined me in an effort to help be prepared to answer whatever questions you have. But we have no more prepared statements to offer.
CHAIRPERSON BERRY: I see. But they will answer questions.
Now we will have opening statements, if any, from the folks from Transportation, Mr. Samuel Podberesky, who is the assistant general counsel of Aviation Enforcement Proceedings.
Would you like to make a five-minute statement?
MR. PODBERESKY: A very short statement.
CHAIRPERSON BERRY: Yes, please.
MR. PODBERESKY: Thank you for the opportunity to appear here today on behalf of the Department of Transportation. The secretary of Transportation, Norman Mineta, apologizes for not being here today because of a prior out-of-town commitment. He has, however, asked that I deliver to the Commission a letter from him and his statement for the record that provides considerable information that should be of use to the Commission in carrying out its important responsibilities. Hopefully, copies of that have been made, delivered, and hopefully it’s been distributed to the Commission members.
Without objection, I would like to read Secretary Mineta’s letter and have his statement included for the record.
CHAIRPERSON BERRY: Please, go ahead.
MR. PODBERESKY: “Dear Madam Chairperson, thank you for the invitation to testify at the Commission’s October 12 public briefing in Washington, D.C. to discuss the civil rights implications of strengthened security throughout the United States transportation systems. I will be on travel on that day and will be unable to attend, but I’ve prepared the enclosed written statement, which I would deeply appreciate your including in the record.
I applaud the U.S. Commission on Civil Rights on its efforts to ensure that all persons are provided equal protection of the laws; that no person is subject to unlawful discrimination when traveling in the nation. This is a time of great challenge to the nation, but that challenge cannot be allowed to serve as an excuse for unlawful discrimination.
As my statement indicates, the Department of Transportation has taken steps to make certain that our transportation system is in full compliance with the civil rights laws and that strengthened security requirements do not change that situation. We will continue to investigate any security-related airline discrimination complaints we receive vigorously and expeditiously.
As one of the 120,000 Americans of Japanese ancestry forcibly interned by the United States government during World War II, I understand how dangerous times such as these can be to civil rights and civil liberties.
I look forward to working with you and the Commission to ensure that our nation never again loses sight of those fundamental American values. I hope the enclosed statement is helpful. If you have any further questions, please feel free to contact Sam Podberesky.”
Fanny Rivera, the head of the FAA’s civil rights office, and I are here to answer any questions you may have regarding the airline security screening process and related civil rights issues.
The FAA develops and implements security screening requirements. I head the department’s Aviation Enforcement office. My office is responsible for investigating complaints against airlines, charging them with civil rights violations, including security-related discrimination.
I cannot overemphasize the importance the department places on civil rights compliance by the airlines. It is a primary focus of my office. We investigate each security-related discrimination complaint we receive and thoroughly and as expeditiously as possible.
Secretary Mineta, who has personally faced significant discrimination and who has a long and successful history as a champion of civil rights, has made clear to each departmental employee the high priority he places on civil rights compliance by the department and each entity that we regulate.
I will be happy to answer any questions you may have. Thank you very much.
CHAIRPERSON BERRY: Now, Ms. Rivera, are you making a statement?
MS. RIVERA: A very short statement.
CHAIRPERSON BERRY: Yes, please proceed.
MS. RIVERA: Well, first, let me thank you for the opportunity to speak to the U.S. Commission on Civil Rights on behalf of the Federal Aviation Administration.
FAA takes the allegations of discrimination very seriously, and continues to be uncompromising in its enforcement of these laws. In 1998, we sent the following assurance to the public that articulates our responsibility. The FAA wants to assure all travelers that airline screening will comply fully with civil rights laws, and nothing will be done that might interfere with fundamental American liberties. The agency has cautioned airlines and airport law enforcement not to target or otherwise discriminate against passengers based on their race, their color, national or ethnic origin, religion; or based on passengers’ names or modes of dress that could be indicative of such classifications.
Transportation Secretary Norm Mineta has stated that while FAA has put into place new heightened security measures that the airlines must follow, we will continue to be very vigilant in ensuring that the airlines as they implement the new procedures do not engage in unlawful discrimination.
The new security measures have been put into service for the safety of all; however, none of these new security measures decrease the responsibilities of the airports or airlines to ensure that airport and airline security procedures are carried out in a non-discriminatory manner.
The departmental office of Aviation, Enforcement and Proceedings—the office that has responsibility for these complaints—has sent to the airlines a message that encourages each airline to take steps to ensure that its employees understand not only is it wrong but it is also illegal to discriminate against people based on their race, ethnicity or religion.
To date, the FAA has received only one complaint regarding discrimination of an individual by an airline on the basis of race, ethnicity or religion. This complaint was given the highest priority and referred to the departmental office of Aviation, Enforcement and Proceedings.
FAA is unwavering in its commitment. We will continue to be ever vigilant and conscious of civil rights concerns and ensure that new procedures are consistent with civil rights laws.
CHAIRPERSON BERRY: Okay. I want to thank all of you. I have just one question, then I’ll turn the whole thing over to the Commissioners to see what questions they would like to proceed. And my one question is to DOT.
We have heard testimony here this morning, and we have all heard media accounts, and we’ve heard some complaints made directly to us, and we did a report last May on the FAA guidelines, one of our advisory committees did—I think it was a Michigan one—and how they might affect airline passengers of Middle Eastern decent.
That despite what you have told us, and what the two of you have told us, that, in fact, Middle Eastern-looking passengers are being taken off, or not permitted on, or taken from airlines before the plane takes off. And we’ve heard media counts also confirming, or at least reporting, that these things are happening.
Could you state as succinctly as possible, either one of you, what FAA guideline or procedure permits the removal of passengers from the airline by airline personnel, based on their ethnicity, national origin, looking Middle Eastern or Muslim or whatever? Is there anything in your guidelines—and what is the guideline—that permits this to happen, either discretionarily or otherwise on the part of airline personnel?
MR. PODBERESKY: Madam Chairperson, there is no guideline that allows anyone to remove a person from an airplane solely because of their race, nationality, ethnic origin.
CHAIRPERSON BERRY: How about as one factor? You said solely.
MR. PODBERESKY: There is a statutory provision which says that the airline is responsible for the safety and security of the aircraft. And they, in fact, may remove a person from an airplane if they believe that person is a safety or security risk to the airplane. But it does not mean that they can remove the person solely because of their race, nationality or ethnic origin.
CHAIRPERSON BERRY: Is it your interpretation that the overall authority of the airline would extend to an interpretation that included one factor in the determination about safety and security, the race, ethnicity or national origin; or is it your belief that such a determination which included that as a safety factor would, somehow, not be permitted as the FAA and DOT understand the responsibility?
MR. PODBERESKY: If in explaining why a person was removed from an aircraft, allegedly because of safety or security concerns, the carrier points to objective conduct that would raise reasonable suspicions that the person is a safety or security risk, that would be taken into account. If they state that the nationality and ethnic origin or race of the person was a factor, it would raise serious concerns with us.
CHAIRPERSON BERRY: And what does raise serious concerns mean?
MR. PODBERESKY: It’s a matter to be investigated on a case-by-case basis.
CHAIRPERSON BERRY: And is there any imaginable circumstance that the two of you can imagine since September 11, or before, that the race or national origin or ethnicity were an Arab American, Muslim, might become part of an acceptable set of criteria? Is there any way that you can imagine that that might be considered as one factor that could be included given the circumstances?
MR. PODBERESKY: I cannot imagine it, but I can’t imagine everything that might go on on the outside.
CHAIRPERSON BERRY: Well, I’m imagining, in terms of the Department of Transportation and your responsibilities when it’s called to your attention. Would you consider, since on or before September 11 or after September 11, that an airline reporting—once you found out that this happened and somebody complained to you—that one of the factors was that this person appeared to be of Middle Eastern or Arab descent or Muslim descent, along with other factors, that you wouldn’t automatically tell them that that’s an unacceptable criteria to be even considered?
MR. PODBERESKY: Yes, I could. If four Arab American-looking people were on an aircraft, and they were all visibly carrying guns, and they were all discussing with each other what they were going to be doing before an airplane took off, and the person said, among the reasons I took into consideration were they were all looking at Arab Americans, then my guess is they had proper cause for removing the people from the aircraft and questioning them further.
CHAIRPERSON BERRY: Because they were Arab Americans?
MR. PODBERESKY: No, not because they were Arab Americans. There were sufficient grounds to remove those people from the aircraft without the fact of their race or nationality or ethnic origin being taken into consideration.
CHAIRPERSON BERRY: Okay. So their mention of the Arab American was simply—
MR. PODBERESKY: That would lead me—that would raise concerns with me, but I would have to look at all the factors that take place on board the aircraft. That’s why I say each case has to be investigated on an individual basis.
CHAIRPERSON BERRY: Okay.
MR. PODBERESKY: The end of that situation may have been that those four individuals may be in jail for the rest of their life. At the same time, we might send a warning letter to the airline saying, you had grounds to remove the people from the airplane. You shouldn’t have considered their race or nationality.
CHAIRPERSON BERRY: I will turn it over to others once I ask, in all the cases that were reported to us and that were in the media and the accounts, no one was carrying guns. And, in fact, there were no examples of people carrying guns. And you would agree with me that if someone’s carrying a gun, that would be a reason, we hope, to kick them off the airplane, whoever they were, right?
MR. PODBERESKY: You were asking about—
CHAIRPERSON BERRY: So what I’m asking is, now—and I’m through with it for the moment—is, if somebody says that it’s an Arab American, and that was why they kicked them off, in your view, then, that would be the wrong thing to do.
MR. PODBERESKY: That would be discriminatory. That would be a problem.
CHAIRPERSON BERRY: Anybody else? Yes? Vice chair?
VICE CHAIRPERSON REYNOSO: Sir, does the general counsel office issue advisory opinions? I see Ms. Rivera shaking her head, meaning no. I wonder if you should, because many general counsels do issue advisory opinions. And it seems to me it would be quite helpful to the airlines to have you issue an official advisory opinion that ethnicity alone is not enough.
MR. PODBERESKY: I think Ms. Rivera indicated in her statement that we’ve already done that. On September the 21, I believe, we sent a message to all the major carriers, advising them of the fact that they should not remove people from aircraft based on their race, ethnicity, national origin. Since then we’ve polled the carriers—and we also recommended that they let everyone of their employees know about our statement and of the law as it exists. We’ve polled the carriers. And it’s included in the secretary’s statement.
VICE CHAIRPERSON REYNOSO: May I ask that question of Ms. Rivera?
Ms. Rivera, do you investigate only when you receive a complaint? What if you see a report in the newspaper where a person is saying, I was refused service, or I was treated impolitely, and so on? Do you investigate that at all?
MS. RIVERA: Not from the media, but we would investigate if we received a complaint.
VICE CHAIRPERSON REYNOSO: Don’t you think you should?
MS. RIVERA: What’s that?
VICE CHAIRPERSON REYNOSO: Don’t you think you should? I mean, many people probably don’t even know that you receive complaints, and others may not have enough confidence in you to file complaints. Shouldn’t you investigate those matters? Wouldn’t that be a matter of some assurance to the public and a break upon those employees who are violating your regulations?
MS. RIVERA: The way we have been operating is that when we receive the complaint, we deal with it; we address it. And we take them very seriously. I mean, we follow up and investigate the complaint directly. Now, with regard to complaints around the airlines, that would go to your office. And maybe you want to speak to that as well.
MR. PODBERESKY: We on occasion do follow up with airlines when we see information in the newspaper about situations that appear to us to be particularly egregious. The airlines provide us information on the reasons why they’ve done what they’ve done.
But without a complaint, we have difficulty in pursuing enforcement action. And from our perspective that’s what we can do. All the major airlines have in place non-discrimination policies.
VICE CHAIRPERSON REYNOSO: I know. But with due respect, we’re dealing now with broad general policies. Apparently, if we’re to believe the numerous reports that we’ve read in the press, the regulations are simply not being followed. My question is, can you folks do something about it. And your response seems to be to say no. And I’m, frankly, quite disturbed by that.
MR. PODBERESKY: I personally have seen—you state that there have been numerous problems. I’ve seen—we’ve gotten a total of 11 complaints since September 11. And of those, I think about half are ones that have been talked about in the newspaper in one form or another. And, perhaps, I’ve seen another four or five in the newspaper, and I do follow the news reports on these kinds of incidents.
Now, considering that there are 700 million airline passengers a year, many of whom are members of minority groups, I don’t believe the numbers are numerous. I don’t believe that a substantial number of people are being adversely affected.
VICE CHAIRPERSON REYNOSO: And that’s all I had seen is three or four reports.
MR. PODBERESKY: And the other thing I’d like to add is, that based on the information that I have—the complaints I’ve seen, the reports I’ve seen in the newspaper—hopefully, this was an anomalous situation that occurred over the first week when a lot of people were scared to death of flying and a lot of people were scared to death of working on airplanes because they were afraid they were going to die when they flew. And hopefully, the situation has eased off now.
I think the last incident of the type you’re discussing, where people were asked to leave an airplane for additional questioning, occurred like September 24 or so.
VICE CHAIRPERSON REYNOSO: Yeah. I guess I’m just concerned about the perception by the public; that is, we have read about those incidents. And at least I haven’t read in those stories or subsequent stories that that was brought to your attention, and that you responded, and so on. It seems to me we would get perhaps a more full picture or at least a sense of confidence that folk are not being discriminated against—if there was some sort of follow up.
So, one, having read those reports, and two, having had the response that you don’t investigate on the basis of those reports, I was just concerned, one, that it may have happened and they weren’t investigated; and two, that there was no subsequent report to assure the American public that, in fact, that type of discrimination is not permitted.
CHAIRPERSON BERRY: Commissioner Meeks?
COMMISSIONER MEEKS: No, actually the vice chair took care of my question.
CHAIRPERSON BERRY: Okay. Commissioner Edley?
COMMISSIONER EDLEY: I don’t get it. I’m confused about the difference in jurisdiction. Ms. Rivera, you said you’re working on one complaint. and Mr. Podberesky, you said you have 11 complaints.
MR. PODBERESKY: My office is charged with the responsibility of investigating civil rights complaints against airlines.
COMMISSIONER EDLEY: As opposed to?
MR. PODBERESKY: And the FAA’s in charge of establishing security requirements on airplanes and approving security procedures for airlines. So the FAA has no authority to enforce civil rights laws against the airlines. And it’s statutory.
COMMISSIONER EDLEY: So the 11 incidents that we’ve heard about of people being removed from planes—
MR. PODBERESKY: They’re not all people being removed from planes. We’ve had 11 complaints.
COMMISSIONER EDLEY: Well, the 11 incidents that Mr. Zogby was talking about.
MR. PODBERESKY: Well, I don’t know about the 11 incidents that Mr. Zogby was talking about.
COMMISSIONER EDLEY: Not those. Okay. So if those are about people being removed from planes—
MR. PODBERESKY: Right.
COMMISSIONER EDLEY:—that’s not her jurisdiction; it’s your jurisdiction?
MR. PODBERESKY: It’s my jurisdiction.
COMMISSIONER EDLEY: And both of you basically said that you would b vigilant against unlawful discrimination. Could you tell me what your definition is of unlawful discrimination and what you’re doing to be vigilant with respect to compliance with that legal standard, upon you responding to complaints that you hear? So just to flush that out, number one, what your definition is. Because I’m uncertain about what the definition is. Actually, the chair and the vice chair said two very different things.
The vice chair’s comment was that race or ethnicity can’t be the sole factor. Now, I’ve heard that definition. The chair’s definition seemed to be that there has to be adequate grounds for action independent of race or ethnicity. There’s a lot of distance between those two. So what is your definition of discriminatory racial profiling or discrimination? If you have one.
Do you see what I’m getting at? I was involved in a lot of worrying about this issue with the Clinton administration. And there never was an agreement about what the definition was of racial profiling. Everybody was prepared to decry decisions using race as the sole basis. But, of course, that’s not really where the hard problem is.
So what’s your definition? And how do you know they’re obeying your definition?
MR. PODBERESKY: Well, my definition—again, going back to it—is it can’t be the sole business for—
COMMISSIONER EDLEY: So it can be “a” factor.
MR. PODBERESKY: It might be a factor in certain circumstances.
COMMISSIONER EDLEY: That’s a yes.
MR. PODBERESKY: I can imagine circumstances where it would be considered to be a factor. But I would expect that the other factors that were considered have to justify the disparate treatment.
COMMISSIONER EDLEY: So it can be an irrelevant factor. It can be an immaterial factor.
MR. PODBERESKY: It could be a factor that we might take some kind of action, but it would not be—it might not be actionable by us beyond something like a warning unless there was not independent justification separate from the race or national origin for the entity to have taken the action that they took.
COMMISSIONER EDLEY: Okay, I think I understand. Let me just try to make sure.
So it sounded to me like what you said was, if the race or ethnicity is a part of the package of factors and is necessary to reach the threshold of adequate justification, that’s discrimination. If race or ethnicity is an additional factor on top of the quantum needed to establish justification, then that smells funny, may justify a warning, a caution, but it does not constitute discrimination. Is that what you’re saying?
MR. PODBERESKY: No, that’s not what I’m saying. I’m saying that we wouldn’t do anything other than issue a warning. There’s adequate justification for the carrier to do what it did, without taking into account the race or ethnicity of the person involved.
COMMISSIONER EDLEY: Okay. So that sounds to me—so if race is considered but is immaterial to the decision, then that’s okay. I mean immaterial in the technical evidentiary sense. You don’t need it to make your case.
MR. PODBERESKY: I don’t think it’s okay, but I don’t think that we would take enforcement action on that kind of a case.
COMMISSIONER EDLEY: As a matter of your prosecutorial discretion or as a matter of the way you interpret the antidiscrimination laws?
MR. PODBERESKY: In my mind it would be a matter of prosecutorial discretion. If we would take action, it would probably be in the form of a warning. But that’s also applying our prosecutorial discretion.
COMMISSIONER EDLEY: Okay. Well, I guess I give up trying to unmuddle myself, but I want to associate myself with the vice chair’s suggestion that, if you have a specific guideline that spells this out, it would be great if you could—I’d like to read it. I’d like to look it up. If you don’t, I think it would be terrific to produce one that is really clear enough to provide the kind of guidance to the public and to everybody that has to comply with it. I think there’s a great deal—I mean, I’m a law professor; I teach this stuff. I think there’s an awful lot of confusion out there about exactly what the boundary is, what constitutes illegal racial profiling, if you will.
And I’ve gone on too long. But I just want to say—
MR. PODBERESKY: Well, maybe I can add just one thing, try to clarify it. I take your point about providing guidelines to heart. I think that’s a good idea. Maybe I can apply sort of a “but for” test.
If you can only justify removing that person because of the race, even if you have other factors—if you had to consider the race to remove the person, then it’s illegal; then it violates the law. Does that help?
COMMISSIONER EDLEY: It’s incredible. It’s terrifically helpful. Well, I mean, at least it’s clear. I have to think about whether I think that’s right, but at least it’s clear. And you think everybody gets that?
MR. PODBERESKY: No, I don’t think everybody gets it because there are a lot of people out there, and there are a lot of people that would even apply that test in different ways.
COMMISSIONER EDLEY: I’ll give up on my monitoring question. But on this issue of—there were some press reports I heard with the removal—pilots saying, or people saying that pilots had authority, under the statute or under your guidelines, to remove somebody if they felt uncomfortable, if they thought it was a security issue, et cetera. And it sounded like a very broad grant of discretion.
I took your earlier statement to mean that there has—somebody said that there has to be actually an action; that there has to be some behavior; that it can’t just be free-floating anxiety felt by a passenger or felt by the pilot; that there has to be something concrete, something objective, to trigger it. Am I understanding that correctly?
MR. PODBERESKY: Yes. But let me clarify. There is a statutory provision. It’s 49 U.S.C. 449.02, gives the airlines authority to remove anybody from the airplane they believe is a safety risk to the aircraft. There’s also a statutory provision, 49 U.S.C. 401.27, which prohibits airlines from discriminating, based on race, ethnic origin, religion, et cetera.
You’ve got to read those two statutory provisions together. And airline pilots who make decisions based on anxiety and unsubstantiable fears are violating the law, if that’s related to race, ethnicity or religion of the passengers involved.
These complaints about people being removed from airplanes for additional questioning—and my understanding is that everybody that was removed eventually flew, either on the same flight or on a later flight. But this is a situation that we have not seen in the past. I mean, we’ve received complaints since—we’ve monitored complaints closely and investigated complaints thoroughly since 1997. This situation where people are being asked to leave airplanes and being questioned further, that’s new. That’s something we haven’t really seen before.
CHAIRPERSON BERRY: May I ask this? You have a CAPS program that you use, computer assisted passenger screening that FAA has been using since 1998. And in May, our advisory committee in Michigan reported that the CAPS system does, in fact, target people on the basis of being Arab Americans and Muslims. That was before September 11. Although as I understand it, the FAA says that you do not.
Also, since September 11, Arab American passengers are being asked, or people are asked—at least they think they are—do you know anybody who has information regarding the attacks.
Are you aware of any of this at the FAA? Have you heard about any of this? You do know about the computer assisted passenger screening program, right?
MS. RIVERA: Yes.
CHAIRPERSON BERRY: And are you aware that our advisory committee recommended to us, at least, that they feel that CAPS does discriminate and profile people. And do you know that Arab Americans at least claim that they’re being asked these questions since September 11, about whether they know anything about the attacks and so on? Is FAA aware of any of this?
MS. RIVERA: I personally was not aware that they were being asked that question.
CHAIRPERSON BERRY: Right. Is FAA aware of any of the claims made by—I’m talking about FAA now, not the DOT office—any of these concerns expressed? And did you know about the advisory committee report concerning CAPS before September 11?
MS. RIVERA: You’re saying that it was in May of this year?
CHAIRPERSON BERRY: I’m asking you, yes.
MS. RIVERA: I was not aware of May of this year—
CHAIRPERSON BERRY: You didn’t know that there was such a report?
MS. RIVERA: But my colleague—
MR. PODBERESKY: I was aware of it. I called the Commission staff and tried to become a witness for that proceeding, and I was not invited. I believe the findings of the proceeding with respect to CAPS are an error.
The CAPS criteria were reviewed by the Justice Department in 1997 and found to be nondiscriminatory. And there clearly has been a continuing perception among many communities that they are discriminatory, but the criteria are not discriminatory.
CHAIRPERSON BERRY: Okay. And although the advisory committee disagreed, you’re saying that from your perspective they were wrong.
MR. PODBERESKY: Yeah. The advisory committee did not call anyone to testify, did not ask any questions, as far as I know, as to what the CAPS criteria was.
CHAIRPERSON BERRY: Before we turn to INS for some questions, are you collecting any data in DOT? Are you doing data collection that we can come back and review later? I’m not asking you whether we can, because I know how we go about doing it. But are you collecting data that may be useful in someone coming back later to monitor how this whole process happened, whether there were complaints, what you did with them—the way our evaluation office does all the time? They go around to agencies and do this as one of our functions.
Are you collecting data on all this and maintaining records?
MR. PODBERESKY: We maintain data on all our complaints. And with respect to all civil rights cases, we maintain investigation files for each complaint.
CHAIRPERSON BERRY: Okay.
COMMISSIONER EDLEY: I’m sorry, Madam Chair.
Let me just urge you to try to think a little bit more about this. We’ve got this massive increase in security attention, with the security lines and so forth. A lot of people are very concerned that there’s going to be enormous opportunities for profiling, for discrimination, for whatever; just for hassling people based on what they look like in ways that most of us would think are unfortunate.
At one level, the law is you can have whatever training programs you have, whatever policy guidance you give to folks. But I guess what we’re asking is, beyond that, what are you going to do to try to make sure as best one can that what happens at the airport in Pittsburgh with all of these folks being hard to do screening and so forth is going to be consistent with your policy pronouncements? Whether it’s a program of auditing, whether it’s a program of ongoing professional supervision. I mean, whatever the strategy is, at least my view is that given this enormous effort that the nation and that you, in particular, are going to be putting into it, if you can build in up front more safeguards and more monitoring so that we can have confidence in the fairness of it—
They’re going to be complaints, and there’s going to be a lot of public itching and moaning about it, especially the farther we get away from September 11. And the more confidence people can have if you set in place a process to keep tabs on it. And the same way that people ask for the state police to have a way of monitoring whether or not there’s racial profiling. It ain’t enough to have the policy pronouncement. What system do you have in place to make sure that it’s not really happening? I think that would be very, very helpful.
CHAIRPERSON BERRY: Right. And it would make our job a lot easier, so that when we come back to do a monitoring report, we can say what you put in place in the beginning. And we don’t have to have as one criticism that you didn’t put anything in place at the beginning, even though you were even reminded to do it over and over again. It just makes the work we have to do, in addition to public confidence, a lot easier. So we hope that you will do that.
On INS, all I want to make sure we ask you is, what about detention? Where are the 148 people who have been arrested? And have they been arrested because they have a propensity toward terrorism in your view or some other reason? The panelists earlier don’t want them to be part of the disappeared ones, I guess.
And the other part of that is, what do you do to see to it that they have adequate legal counsel, given that they are moved around? So someone can answer those two for me, and then I’ll turn to other people.
MR. COOPER: Yes. I’d be delighted to at least begin. The group that you’re talking about is slightly under 150 people. These are people who are in custody and who have, at least in the eyes of the INS, and formally according to our charging documents that began the immigration proceedings, are people who are here in violation of the immigration laws. They also, though, are people who are believed by the U.S. government to be of concern because of potential connections with the events of September 11.
Now, typically, it’s a law enforcement agency other than the INS that has that institutional role of deciding when someone is of that sort of law enforcement concern. And so, we, for example, aren’t the ones who are principally the anti-terrorism experts. But if the FBI, for example, considers someone to be of law enforcement concern because of potential connections to September 11, and the person also is in the United States in violation of the immigration laws, then it’s appropriate—it’s lawful—for us to proceed on the basis of the immigration violations at the same time that the investigation into the September 11 incident goes forward. And that is true of the category of people that you’re describing.
They’re in custody in various places around the country, and they’re in custody according to the normal process that applies to anyone who’s in detention for immigration purposes. And let me describe what that is.
First of all, for someone to be in our custody—just for clarity sake—they have been under arrest. There was some discussion in other law enforcement context in the immediate days after September 11 about whether arrests had been made. If we have someone in custody for immigration purposes, they’re under arrest. And for us to do so we’ve got to have probable cause to believe that immigration violation has occurred. And within a certain period of time, one that has changed by regulation since September 11—and we can come back to that if anyone is interested—within a certain period of time, now 48 hours, we’ve got to make a decision whether to proceed with a formal immigration proceeding to remove that person and to judge whether, in fact, we’re correct that they’re here in violation of the immigration laws, or whether to give them what’s called voluntary departure, or simply to release them and end any sort of immigration proceeding at that point.
After we’ve made that decision, if the decision is to go forward with formal removal proceedings, then we’ve got to serve them with a charging document. It’s called a Notice to Appear. And that gives the person notice of the formal institution of removal proceedings, and among other things, it gives them notice of their right to go before—in most categories of cases—an immigration judge, which is a separate authority from the INS, and ask that judge to reevaluate our initial custody decision.
They also are given in the course of that immigration proceeding a listing that varies from locale to locale of free or low-cost legal services that’s actually compiled by that other authority I mentioned, the Executive Office for Immigration Review. It’s a Justice Department component that’s separate from the INS, but it’s done in consultation between the two agencies. And the formal list is given to everyone who’s in INS custody.
I should clarify what one of the earlier panelists has said. There is, in fact, a guaranteed right to counsel through the immigration process. What there’s not a right to is government-funded counsel through the immigration process. But in order to give effect to that right, there are a number of steps that the INS or other department components have taken to ensure that people have a way of getting an attorney.
One is this list that I mentioned to you. Another is the provision of access to telephones, visitation access, and so forth, when people are in our custody, for, among other purposes, the right to get or to consult with counsel. And in the wake of September 11 we had issued formally a reminder to both my attorneys around the country and, more important, to INS operational personnel around the country who administer detention of what it means to have a right to counsel and to have actual access to counsel when you’ve got attorneys, and a right also to consular access, to consular personnel from your country of nationality should you wish it.
Those are among the steps that we’ve taken to ensure that the statutory right to counsel is actually observed when we have someone in immigration custody. That’s something that we’ve taken steps to do generally, and we’ve taken particular steps to ensure that since September 11.
I had read in the newspaper accounts of instances where people said, I’m an attorney who tried to go see my client and was turned away. In addition, we’ve heard what Ms. Massimino, for example, from the Lawyers Committee—we work with them on a quite regular basis. And I heard her comment in other contexts that they’d had word of attorneys who are affiliated with them who had trouble getting access. That’s what generated this formal reminder that access to counsel’s required and what that means.
So that’s the basic answer about counsel.
CHAIRPERSON BERRY: Mr. Cooper, in addition to reminding—to ask the same kind of question that the vice chair and Commissioner Edley have asked before—is there some way you could check out these stories that—I mean, if Ms. Massimino, with whom you work—her organization that is, on occasion has contact—says that some attorneys weren’t able to do this, isn’t there some way for you to ask whatever office it is do they know about these folks coming and trying to get to see these lawyers or to check out some of these things?
You know, we’re awfully inquisitive around here. When we read about things in the paper, even though nobody brought them to our attention, we can’t even sleep at night until we try to figure out, “did this really happen? Gosh.” If somebody says that our regional office in Atlanta, thus and so happened, we want to find out. “Did it happen?” Call up people and ask them and all kinds of questions. We’re restless.
COMMISSIONER EDLEY: It might, for example, be grounds for some kind of disciplinary action—
CHAIRPERSON BERRY: Right, absolutely.
COMMISSIONER EDLEY:—if somebody actually stands in the way of somebody getting access to their lawyer.
CHAIRPERSON BERRY: I don’t know. Curiosity alone would inquire I think. Isn’t there some way you could check out some of these things to see if they’re really true?
MR. COOPER: Well, we also act on the basis of news accounts. And this is just my personal experience. And that or relations with organizations that whose job it is to watch what we do and to let us know when they think we’re doing wrong is, typically, the quickest and most efficient way to find out when something’s gone awry. But, perhaps, Mr. Venturella has more to offer. And then I see that we have a question from Commissioner Reynoso as well.
MR. VENTURELLA: We do take this very seriously. And we do investigate when we get complaints or see these issues in the newspaper. As Mr. Cooper mentioned, we did see that same article. And we do go out and contact our officials down there, get the facts of the case, and try to work—for example, in Newark we have an issue with Highes having attorney access into that facility, one particular individual. We constantly are in contact with Highes, with that office to try to resolve those issues.
So it’s not if a formal complaint comes in, then we react to it; we react when we hear instances where this might be a problem, where our detention standard is not being followed.
Also prior to September 11, the Department of Justice has independently contracted for reviews of all of our INS major detention facilities and our U.S. marshal’s facilities. And that’s being headed up by Price WaterhouseCoopers. And they’re doing an independent review of these facilities and measuring them against our standards, the department’s standards, and I believe ACA standards.
And within my own program we do have a compliance and monitoring component. And part of what they do is to ensure that our facilities are meeting these standards or are taking steps to try to meet these standards.
CHAIRPERSON BERRY: Yes. Commissioner Lee and then Commissioner Meeks.
COMMISSIONER LEE: You mentioned that everyone has rights to counsel and everything else. How are those information being related to these individuals? I mean, do you have something in writing in the person’s native language? Do you have translators right there, and then say you have right to legal counsel, you have right to make phone calls, whatever? How is that being transmitted to the individuals?
MR. VENTURELLA: When we take a person into one of our detention facilities, whether it’s one we own, contract, or one that’s contracted with a local entity, we do provide the individuals with a know-your-rights presentation, which is something that was established last summer and across the country is beginning to pick up. We also work with local NGO groups to provide those independent know-your-rights presentations. There have been pamphlets made in different languages.
Again, it’s not consistent across the country. Obviously, there’s different needs for the different populations that are being detained. But local offices are trying to let the individuals know of these rights under the detention standards. This is a new program for us that started in January of this year, and this is the first phase of it. Recognizing that there are a lot of issues, now that we are charged with detaining more individuals, persons with violent and criminal backgrounds, the whole landscape of our detention has changed over the last five years. And, unfortunately, now we’re playing catch up to deal with these issues, and the first was with our detention standards.
So we have a long way to go in that area, but we are taking steps—I think the right steps—to ensure that individuals understand, at least at the basic level, what their rights are or where they can have access to more resources or more information.
COMMISSIONER LEE: Mr. Cooper, you mentioned that the immigration judges are not part of the INS.
MR. COOPER: That’s right.
COMMISSIONER LEE: So who have oversight of their work, and do you and INS keep records of approval and denial rates of asylum seekers? Who keeps records of this?
MR. COOPER: The answer is that both of us do because there are two separate systems for asking for and having an asylum claim adjudicated. The basic rule is that if a person comes to us and asks for asylum first, then they’re in what’s called the affirmative asylum program. And they would meet with an officer in Mr. Langlois’ program in a non-adversarial setting. It’s an interview. The two people sit down alongside a translator, attorney if they’d like to have an attorney and so forth. And it’s an asylum interview. And the asylum officer is an INS adjudicator and would decide whether or not that person is a refugee and is entitled to asylum. And their program keeps statistics by nationality, and a number of other things, of the recognition rates.
If that person is not granted asylum in that context and is out of status—is not here legally—or if it’s someone that we go to first and allege that they’re removable from the United States, they would go into this immigration judge proceeding, or we would put them into an immigration judge proceeding, where they have a chance to ask for asylum again. And it’s a de novo determination; it starts from scratch. And they can ask an immigration judge for asylum or for any other remedy under the immigration laws that they may believe they’re entitled to.
That’s a somewhat different setting. It’s an adversarial setting and looks much more like the classic courtroom setting, where there’s an INS attorney who’s there to represent the INS. And then that person has a right to counsel as well. And there’s an independent decision-maker who would determine their asylum claim. That’s the immigration judges that are part of this separate component of the Justice Department. They also keep statistics on grant and denial rates; although, I can’t speak with any expertise about that.
You asked about oversight. A negative decision there can be appealed to an administrative appeals tribunal that’s also separate from the INS. And many, but not all, kinds of negative decisions there can be reviewed in the federal courts.
COMMISSIONER LEE: I guess my specific question is, do you keep statistics on individual judges’ decisions. I think I read somewhere, L.A. Times or something, that there was a judge who never approved one’s application in her entire life as an immigration judge, which I found sort of hard to believe. I’m not talking about the overall approval/denial rate; I’m just talking about specific officers or specific judges—how do they deal with asylum cases, and do you monitor them. For instance, if someone has never approved anything, do you have a red light to say, oh, maybe something’s going on.
MR. COOPER: I read this same article. That, of course, was about immigration judges, and I’m not in a position to be able to speak for them. But Joe Langlois would have the same sort of concern because he administers the group of INS asylum officers who would make those decisions here. And I noted that in the last hearing—I don’t know if it was the last, but previous hearing—that the Commission held on immigration matters, one of the panelists made what I thought was a wise suggestion, for you to watch a film, a documentary that had been made called “Well-Founded Fear” that addresses, among other things, this issue. And so, perhaps, Joe has some other insight.
MR. LANGLOIS: Okay. Certainly, ensuring consistency is a very difficult task. We do a number of things to ensure consistency. Certainly, we keep statistics on the individual asylum officer and their approval rates. In addition, we have, of course, 100 percent supervisory review of all decisions that are in the affirmative asylum adjudication. So we’ve got a supervisor reviewing and signing of the grant letter or the charging document.
Now, the supervisor ensures the consistency of the group that the individual supervises. But we also have what are called quality assurance trainers, sometimes two, sometimes three, sometimes one, depending on the size of the office. We have eight offices in the United States. It’s the job of these individuals to look at what the supervisors are signing off on in order to determine trends and also to see trends and adopt training material in order to correct the trends that they’re seeking.
And last of all, we have the headquarters in Washington, D.C. that mandates that certain types of cases come to headquarters for review. And then, sometimes we do random samplings in the offices themselves. So we do a number of things to ensure that the law is being applied consistently and fairly. But I would mention that our approval rate at this point is about 42 to 43 percent in the affirmative program of the individuals that we interview and decide.
CHAIRPERSON BERRY: Commissioner Meeks?
COMMISSIONER MEEKS: Several of the other panelists mentioned legal representation. And you referred to it a little bit, Mr. Cooper. Explain that a little bit. They have a right to it, but the government doesn’t have to pay for it. Is that what you said?
MR. COOPER: Right.
COMMISSIONER MEEKS: So this list of lawyers, I guess, that can represent, then who pays for them? The individuals?
MR. COOPER: Well, there’s a huge network of private counsel who, depending on the client, people engage and pay in the normal sense. But there also are a large number of organizations that provide low-cost or no-cost legal services. Often they’re funded—and I can’t speak with full expertise on this, but just the organizations I’ve come across. There are organizations that are funded by churches or faith-based groups. There are organizations, like the Lawyers Committee for Human Rights whose representative testified a while ago. And one of their functions is to work with private law firms around the country who do all kinds of different law, but to encourage their attorneys to spend time pro bono representing asylum seekers or other people in the immigration context and providing training and so forth. But in the normal way that pro bono organizations derive funding, there are those whose focus is to represent the interest of immigrants or people of foreign nationality who are in the immigration process.
COMMISSIONER MEEKS: So how much does the detention relate to this? I mean, I would imagine that these pro bono lawyers have backlogs. And how much of the detention relates to them just not being able to get an attorney when they need one?
MR. COOPER: That’s a good question. I don’t think I have a very precise answer.
Do you—is there—
COMMISSIONER MEEKS: I probably should have asked that of another panel.
MR. COOPER: They might be in a better position, actually, to give information from the ground.
CHAIRPERSON BERRY: But are you saying that the people you have in detention, insofar as you know it, they usually do have legal representation, or you don’t know? Or they don’t?
MR. VENTURELLA: From my personal experience, I would say a small percentage have legal representation.
CHAIRPERSON BERRY: Okay. Because I think that’s what Elsie wants to know—a very small percentage.
MR. VENTURELLA: I don’t know what that percentage is.
CHAIRPERSON BERRY: Right.
MR. COOPER: And with respect to the group of 148 that you asked about, I couldn’t tell you precisely how many are represented. I know that very many are just because of seeing their cases go through this, one of the things that I would look for is whether or not there’s an attorney. I know that, for example, people have asked for continuances and gotten continuances in order to get a representative.
CHAIRPERSON BERRY: Could you check on the 148, just whether they have legal representation, and let us know that? That’s all we want to know.
MR. COOPER: Yeah, I’ll try to get a more precise estimate.
CHAIRPERSON BERRY: We don’t even care—you don’t have to tell us who it is. But we just would like to know whether those particular folks have legal representation.
MR. COOPER: I know that there will be a significant percentage who do, but I’ll try to find out more precisely how many it is.
CHAIRPERSON BERRY: We would appreciate you letting us know that.
MR. COOPER: Yes, I will. I also should note that that’s—just so that you understand the caseload a bit, it’s a changing number. For example, it was more than 148 yesterday. But among the things that we have been trying to do is—and I also should make clear for the record that these people are in custody, and the INS has determined that they should be in custody without the possibility for bond. And that’s the decision that they’ll have the opportunity to have reviewed by an immigration judge.
Now, that is our most serious custody decision. Most people who come to the immigration process are not in custody. And many people are released at some level of bond or with some set of safeguards designed to ensure, as much as possible, that they’ll return to the process at the points they’re called upon to appear for hearings and so forth.
So that’s our most serious custody determination, and we reserve it only for the most serious of situations. And let’s be plain. We wouldn’t pretend other than that it’s serious. These are people who are detained without a possibility, in our view, of being released. And so, among the things that we’ve done to try to make sure that that’s an authority that we are exercising carefully is, I have attorneys from my office and from INS offices around the country who are working, first of all, around the clock in a center to offer consultations to INS operators—operational personnel around the country—to get advice on search and seizure principles, and to make sure that when we take someone into custody, we’ve got a lawful basis for doing so.
We have another unit staffed, again, on sort of an emergency basis of people from my office and from around the country that’s working, again, 24 hours to make sure that with respect to this caseload there is, in fact—we’ve confirmed that there is an immigration violation. In other words, it’s appropriate for us to be going forward with immigration proceedings.
Then there is another group of attorneys who is working with the law enforcement agencies to ensure that there are facts; that there is a possible connection with the events of September 11 that would continue to justify this no-bond determination and to try to review those cases as thoroughly and as frequently as possible. And when there comes a point where a person can be said not to be involved, that they’re not treated for custody purposes as if they were. And that’s why, for example, that the list would be smaller today than it was yesterday. It would also increase if there were new people who were discovered.
CHAIRPERSON BERRY: I understand.
MR. COOPER: So I just want to give you a picture of the group.
CHAIRPERSON BERRY: Okay. Vice chair, did you still have a question?
VICE CHAIRPERSON REYNOSO: Two questions. One, we’ve heard that there are many linguistic groups, for example, in Afghanistan. If somebody is asking for asylum, do you have provisions for an interpreter, particularly for the groups that are not well represented in terms of numbers?
MR. COOPER: Let me ask Joe to respond to that in the context of the affirmative asylum process.
MR. LANGLOIS: Certainly. Just as a clarification, the asylum division administers two programs that this would have bearing on. The first program is the affirmative asylum program, where an individual, of course, steps forward to us with an application. The individual is not provided an interpreter by the government; the individual has to provide his or her own interpreter in order to make him or herself understood to the asylum officer. Certainly, “Well-Founded Fear” portrays that very well, some of the problems and difficulties that we encounter given that situation. However, if an individual does not receive asylum from an asylum officer, they’re placed in immigration proceedings in front of an immigration judge for a de novo proceeding. And at that point, the government will pay for interpreting services.
VICE CHAIRPERSON REYNOSO: Okay. And so far you’ve found that you can find interpreters for some of these languages that are not very common.
MR. LANGLOIS: The individual in the affirmative context finds his own interpreter. And I am not familiar with the immigration judges’ problems in securing interpreters for themselves.
The other context that this would have a bearing on is when an asylum officer conducts a “credible fear” hearing or interview during the expedited removal process. And we hire interpreters telephonically. We’ve had some difficulties getting some languages, of course, but we’ve been able to resolve those issues.
If I could, I’d just like to have one clarification of the record for the right to representation. An individual that’s up for an immigration judge proceeding and that is detained has the right to representation. An individual that is in expedited removal prior to setting up for proceedings does not have the right to representation. So an individual can be detained, awaiting their credible fear interview. And the credible fear interview can be conducted, and the individual does not have the right by statute to representation but has the right to a consultant that can be a lawyer as well as a friend or et cetera. So it’s a little bit wider, but it doesn’t carry the official weight of having a representative.
VICE CHAIRPERSON REYNOSO: Thank you.
My second question has to do with some of the discussion we had earlier. The impression I had is that some individuals have been detained by the FBI that may have some immigration issues but need not. And they have been detained or detained as potential witnesses. And there’s those potential witnesses who don’t have a right to counsel and so on. And that may be some of the folk that have not been able to be contacted by lawyers and so on.
Are you aware of that?
MR. COOPER: I know of the authority to detain people who may be material witnesses, but we don’t have the institutional role or expertise to do that. And that’s something that would be best addressed to the FBI.
VICE CHAIRPERSON REYNOSO: For example, we had the testimony of the doctor from Texas. He actually was an immigrant already here. So, generally, you would be dealing with him, and yet he was detained for several days by the FBI. So I assume that he was detained by authority not within your purview but the Justice Department purview.
MR. COOPER: In his case, that was precisely someone else’s authority. And I understand it was this material witness custody authority. But there may well be people who are already here but who can come into immigration custody if we determine, again, that there’s probable cause to consider that they’ve committed immigration violations.
CHAIRPERSON BERRY: Sure, or they lied.
MR. COOPER: Yes, that’s right. For example, there’s been a fair amount of press coverage of this person from Minneapolis, the suspicions about whom stem from his efforts to learn to fly a plane but not having an interest in taking off or landing and so forth. That person is not in our custody now. He was, however, in immigration custody earlier on but for separate entirely unrelated reasons. And that can happen daily for people who are already here in the country. But with the person that you’re asking about, no; he’s in custody under separate authority from the immigration authority.
VICE CHAIRPERSON REYNOSO: Thank you, Madam Chair.
CHAIRPERSON BERRY: Yes. Commissioner Meeks?
COMMISSIONER MEEKS: Yes, I just have one more question that was brought up by one of the panelists.
You, evidently, have some reporting requirements that were legislated, that you report to—and I’m not even sure who the appropriate agency is or who you report to, Congress—about the status of detainees. And it sounded like these reports really hadn’t been regularly forthcoming. And the question was, what are the barriers of that, why haven’t the reports been—
MR. COOPER: I had heard that question. We have scores of congressional reporting requirements. And this particular one about—as I understood the testimony, it was about detention of asylum seekers.
Are you familiar with that requirement?
MR. VENTURELLA: Yes, I am.
CHAIRPERSON BERRY: Are you behind on any of your reporting requirements?
MR. VENTURELLA: Yes, we are, ma’am. There’s no question about that. I will be brutally honest; yes, we are. There are two or three reports that we have not submitted. And the simple answer is, is because we don’t have enough data to really analyze and give a useful report. And we’re in the process now of trying to negotiate with the requesters of that particular report what exactly are they looking for, and this is what we can give you to see if that satisfies their needs. But, yes, we have not issued those reports since 1999.
CHAIRPERSON BERRY: Okay.
Commissioner Lee? Were you finished, Commissioner Meeks?
COMMISSIONER MEEKS: Yes.
COMMISSIONER LEE: I just have one question.
Post-September 11, I’ve heard some communities worrying that their applications for either naturalization or family immigration petitions will have to go through extra scrutiny. Do they have reason to fear? Or if not, have you done anything to send directives to your staff to make sure that certain people who go through the naturalization process would not be unduly singled out?
MR. COOPER: I do know that we’ve naturalized 45,000 people since September 11, and have with that and with every other aspect of our benefits-providing function continue to try to make sure that that happens in a prompt and efficient way. There are, undoubtedly, going to be some ways in which our functions slow down. I think that the ports of entry are probably a good example.
We have taken steps to augment our personnel at the ports of entry and to have INS staff, for example, at ports that had previously been staffed just by customs agents. We’ve tried to make sure that ports are open 24 hours throughout the week. And at those ports we have enhanced security measures in place and there are backups at the ports of entry. We open the trunks of every car now that comes through the land ports. There is more careful screening at ports in general. And we have, for example, eliminated situations where we have alternative methods of inspection and have tried to focus on ways in which there’s a biometric way of inspecting someone, and have increased the ways in which we’ve consulted databases and so forth. So the inspections process clearly has been affected. And if you were to go to the southern border, for example, and looked at the lines that form on the other sides of those borders, you’d see them much longer than before September 11.
The refugee admittance process, we’re early in the process, but in the process, that was begun before September 11 of evaluating whether the refugee screening process—that is of people who are being brought in from overseas as refugees—could be improved. Nevertheless, we’ve continued to admit refugees right up until the last day of the fiscal year, at the end of September, including from Afghanistan and other countries that would be of interest.
So that’s a long way of saying that we’ve got business to do and have tried to make sure that that business goes forward, with naturalization, refugee admissions, inspections at the ports and so on. But there will be ways in which that business is affected.
COMMISSIONER LEE: Is there any way that you can monitor, specifically, the work visa programs and the family immigration programs, proceed normally? And, particularly, for applicants from certain countries that’s under extra scrutiny to not be singled out, is there any way you can monitor that?
MR. COOPER: I suspect that the answer is yes, but what I’d like to do is defer a response on that question and consult with people in my agency who are better expert in that aspect of our work, and submit something in writing afterward, when I give you the answer on representation of people in our custody, if that’s agreeable.
CHAIRPERSON BERRY: Now, would there be an advantage to our having our staff talk to somebody—I don’t know who the somebody is—in INS about these matters? Because, you see, as I told the DOT folk, we will have to do monitoring reports on what you’re doing. And if there are data collection issues and problems, they can be resolved early and before we come back and ask you for the information that would be useful.
So do you think that would be useful? And you don’t have to tell me who the someone is now. But do you think it would be, perhaps, useful to do that? So that we can all be assured that we’re speaking from the same script and we know what we’re talking about here when we come back. So we don’t simply have to come back and say, well, they didn’t keep this kind of data, and they didn’t do that, and they should have done that, and they didn’t do that. Is there some way to have that done possibly?
MR. COOPER: Sure.
CHAIRPERSON BERRY: Not that we’re telling you want to or you’re telling us.
MR. COOPER: You might after the consultation reach the conclusion that we didn’t do that and we should have done that. But it’s in our interest to provide you with as much information as we can. And one way to do that is just through the connection that was made in inviting us. I know that your acting deputy, general counsel, had communicated with Ms. Huey.
CHAIRPERSON BERRY: That would be good.
Did you have something?
VICE CHAIRPERSON REYNOSO: No. I just wanted to emphasize the thanks that we all have, particularly to you folks who are in government, coming forward and having this discussion with us because we do have those oversight responsibilities. So I just wanted to underscore how grateful we are that all of you have come forward.
CHAIRPERSON BERRY: Edley, did you have something else?
COMMISSIONER EDLEY: Well, just really a recommendation, a request that as the staff thinks about what the data needs and monitoring ideas might be—actually, bearing in mind the new statute and the new kinds of data collection things that seem to be contemplated in the new legislation, that the staff consult with a few researches.
Professor Harris, for example, and some others who have looked at this issue of effective strategies for monitoring compliance and racial profiling context or whatever—because you’ve got an enormous amount of discretion, immigration, a little bit. And it’s about to get bigger. And I think if we can build in some safeguards and just everybody feel confident that if all the good ideas people have reasonable come up with that will help you ensure that folks in the field are obeying your policy directives in non-discriminatory ways and so forth, I think everybody would feel happier than they might otherwise.
MR. COOPER: In our view, honest scrutiny serves the process, doesn’t disserve it. But I should caution you that a lot of times we’re not going to have ready access to the kinds of statistics that would be useful to have.
Just to illustrate, for example, with the statistic that Mr. Venturella was talking about, that you were asking about, and that a previous panelist had mentioned—asylum seekers in detention. That sounds on its face like it should be something simple and obvious to know. But when you actually work out what that means in practice, it gets much more complicated, and you understand that that’s actually a difficult statistic for us to come up with.
When someone goes into the immigration court process, unless they’ve come from Mr. Langlois’ program, we don’t know they’re an asylum seeker until much later in the process and under circumstances where that’s not automatically going to be recorded, for example, for us as opposed to a different institution. That’s not to say that’s not a statistic we ought to have; it’s just one that we don’t for reasons that are complicated. And we may run across that as you ask us about bits of information. With that caution, though, I think we welcome the opportunity to provide you with as much information as we can.
COMMISSIONER EDLEY: I just want to make sure—at the moment the National Academy of Sciences, National Research Council, has just started a panel that’s going to go on for two years, focused on the question of, how do you detect and measure discrimination. I would, at a minimum, suggest that you might want to touch base with the National Academy of Sciences and see if the people there have anything that might be of use of you.
But the kind of problem that I’m worried about has a little, perhaps, to do with data collection, but it’s just very concrete. If you have an asylum officer or if you have an inspector at a port of entry, or anybody in your system who’s making a discretionary decision, do they treat people comparably.
And maybe you guys ought to have your own set of testers, the way that it’s used to detect housing discrimination, for example, or entry-level employment discrimination, where you could have people, somebody dressed up wearing a turban and somebody who looks like they’re from France; present the same kind of facts, and see if they get treated different. I mean, different strategies that you might use to see to it whether or not the training that you give your personnel is actually effective at preventing disparate treatment.
Just off the top of my head, what I’m saying is a good faith, full-force effort to try to figure out how do we make sure the ramping of our security without multiplying the opportunities of discrimination is something that you guys could do proactively. And I think we’d like to try to be helpful.
MR. VENTURELLA: For my particular program, detention and removals, our mission is to provide humane and secure detention. And now what we’re trying to do is find measures that tell us we’re reaching that objective. And that is different than what we’ve done before because in the past, people were more concerned with how many people we’ve removed. We are now focusing our measures to achieve that objective, and I think that’s where you’re getting at.
So, yes, we are being proactive. We are developing a strategic plan to get us to that objective. And we have no problem sharing that plan once it’s developed. But that’s what we’re striving to achieve in my particular program.
CHAIRPERSON BERRY: As we let our briefers, who were kind enough to come over today, go, I wish we would agree, or if there’s no objection, we would simply ask the staff director to have the staff put together for us a schedule of how we would go about monitoring the two agencies we have before us in terms of the issues we’ve been discussing here as we go through this process; and that we would all agree that that is what we will do as we go through this process, the details to be discussed later. Because it seems to me that what this whole discussion has informed us of today is that there is a need to do that. And so we will do it, if there’s no objection.
Is there no objection? Then the staff director will do that.
Let me thank all of you for coming, and wish you every good luck as you continue the hard work that you do, and tell you how much we appreciate it. Thank you.
(Whereupon, the foregoing matter went off the record at 2:03 p.m.)
END OF PANEL THREE