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105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-338
_______________________________________________________________________


 
TO REQUIRE THE ATTORNEY GENERAL TO ESTABLISH A PROGRAM IN LOCAL PRISONS 
 TO IDENTIFY, PRIOR TO ARRAIGNMENT, CRIMINAL ALIENS AND ALIENS WHO ARE 
    UNLAWFULLY PRESENT IN THE UNITED STATES, AND FOR OTHER PURPOSES

_______________________________________________________________________


October 23, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary,  submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1493]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1493) to require the Attorney General to establish a 
program in local prisons to identify, prior to arraignment, 
criminal aliens and aliens who are unlawfully present in the 
United States, and for other purposes, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.

                           TABLE OF CONTENTS


                                                                   Page
The Amendment..............................................           1
Purpose and Summary........................................           3
Background and Need for the Legislation....................           3
Hearings...................................................           4
Committee Consideration....................................           4
Vote of the Committee......................................           5
Committee Oversight Findings...............................           5
Committee on Government Reform and Oversight Findings......           5
New Budget Authority and Tax Expenditures..................           5
Congressional Budget Office Estimate.......................           5
Constitutional Authority Statement.........................           8
Section-by-Section Analysis and Discussion.................           8
Agency Views...............................................           9

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. PROGRAM OF IDENTIFICATION OF CERTAIN DEPORTABLE ALIENS 
                    AWAITING ARRAIGNMENT.

    (a) Establishment of Program.--Not later than 6 months after the 
date of the enactment of this Act, and subject to such amounts as are 
provided in appropriations Acts, the Attorney General shall establish 
and implement a program to identify, from among the individuals who are 
incarcerated in local governmental incarceration facilities prior to 
arraignment on criminal charges, those individuals who are within 1 or 
more of the following classes of deportable aliens:
            (1) Aliens unlawfully present in the United States.
            (2) Aliens described in paragraph (2) or (4) of section 
        237(a) of the Immigration and Nationality Act (as redesignated 
        by section 305(a)(2) of the Illegal Immigration Reform and 
        Immigrant Responsibility Act of 1996).
    (b) Description of Program.--The program authorized by subsection 
(a) shall include--
            (1) the detail, to each incarceration facility selected 
        under subsection (c), of at least one employee of the 
        Immigration and Naturalization Service who has expertise in the 
        identification of aliens described in subsection (a); and
            (2) provision of funds sufficient to provide for--
                    (A) the detail of such employees to each selected 
                facility on a full-time basis, including the portions 
                of the day or night when the greatest number of 
                individuals are incarcerated prior to arraignment;
                    (B) access for such employees to records of the 
                Service and other Federal law enforcement agencies that 
                are necessary to identify such aliens; and
                    (C) in the case of an individual identified as such 
                an alien, pre-arraignment reporting to the court 
                regarding the Service's intention to remove the alien 
                from the United States.
    (c) Selection of Facilities.--
            (1) In general.--The Attorney General shall select for 
        participation in the program each incarceration facility that 
        satisfies the following requirements:
                    (A) The facility is owned by the government of a 
                local political subdivision described in clause (i) or 
                (ii) of subparagraph (C).
                    (B) Such government has submitted a request for 
                such selection to the Attorney General.
                    (C) The facility is located--
                            (i) in a county that is determined by the 
                        Attorney General to have a high concentration 
                        of aliens described in subsection (a); or
                            (ii) in a city, town, or other analogous 
                        local political subdivision, that is determined 
                        by the Attorney General to have a high 
                        concentration of such aliens (but only in the 
                        case of a facility that is not located in a 
                        county).
                    (D) The facility incarcerates or processes 
                individuals prior to their arraignment on criminal 
                charges.
            (2) Number of qualifying subdivisions.--For any fiscal 
        year, the total number of local political subdivisions 
        determined under clauses (i) and (ii) of paragraph (1)(C) to 
        meet the standard in such clauses shall be the following:
                    (A) For fiscal year 1999, not less than 10 and not 
                more than 25.
                    (B) For fiscal year 2000, not less than 25 and not 
                more than 50.
                    (C) For fiscal year 2001, not more than 75.
                    (D) For fiscal year 2002, not more than 100.
                    (E) For fiscal year 2003 and subsequent fiscal 
                years, 100, or such other number of political 
                subdivisions as may be specified in appropriations 
                Acts.
            (3) Facilities in interior states.--For any fiscal year, of 
        the local political subdivisions determined under clauses (i) 
        and (ii) of paragraph (1)(C) to meet the standard in such 
        clauses, not less than 20 percent shall be in States that are 
        not contiguous to a land border.
            (4) Treatment of certain facilities.--All of the 
        incarceration facilities within the county of Orange, 
        California, and the county of Ventura, California, that are 
        owned by the government of a local political subdivision, and 
        satisfy the requirements of paragraph (1)(D), shall be selected 
        for participation in the program.

SEC. 2. STUDY AND REPORT.

    Not later than 1 year after the date of the enactment of this Act, 
the Attorney General shall complete a study, and submit a report to the 
Congress, concerning the logistical and technological feasibility of 
implementing the program under section 1 in a greater number of 
locations than those selected under such section through--
            (1) the assignment of a single Immigration and 
        Naturalization Service employee to more than 1 incarceration 
        facility; and
            (2) the development of a system to permit the Attorney 
        General to conduct off-site verification, by computer or other 
        electronic means, of the immigration status of individuals who 
        are incarcerated in local governmental incarceration facilities 
        prior to arraignment on criminal charges.

                          Purpose and Summary

    H.R. 1493 would require the Attorney General to detail 
Immigration and Naturalization Service employees to selected 
local governmental jails and prisons in order to identify, 
prior to arraignment, deportable criminal aliens and aliens 
unlawfully present in the United States.

                Background and Need for the Legislation

    H.R. 1493 proposes a program different from INS's 
Institutional Hearing Program (``IHP''). In the IHP, INS 
employees are stationed at state and federal penal institutions 
to identify aliens convicted of deportable crimes so that they 
can be placed into deportation proceedings while incarcerated 
and then removed from the United States upon completion of 
their sentences. H.R. 1493 proposes instead that individuals be 
identified after arrest and before arraignment (when they are 
typically held at local governmental institutions). While 
aliens later convicted of crimes would be identified if made to 
serve their sentences at institutions where the IHP is 
operating, pre-arraignment identification will identify illegal 
aliens and aliens previously convicted of deportable crimes 
even if they are never tried for or convicted of the offenses 
for which they have been arrested. These aliens can then be 
turned over to the INS for removal from the United States. Pre-
arraignment interviewing also prevents aliens from using false 
identification, being mistakenly labeled first-time criminal 
offenders, and being released on that basis.
    A number of successful pilot projects forms the basis for 
H.R. 1493. In September 1995, the Anaheim City Council directed 
the police department to conduct a two-month study in which all 
arrestees booked at the Anaheim Detention Facility were 
questioned concerning their citizenship status. Over 36% of 
those booked were suspected of being illegal aliens.\1\ A 
second study was initiated after Detention Facility staff 
received training from the INS. The study found (for the period 
from January 1 to April 4, 1996) that over 31% of individuals 
booked were suspected of being illegal aliens.\2\
---------------------------------------------------------------------------
    \1\ See Memorandum from Randall Gaston, Chief of Police, City of 
Anaheim, to Anaheim City Manager and City Council at 2 (Dec. 13, 1995).
    \2\ See Memorandum from Randall Gaston, Chief of Police, City of 
Anaheim, to Anaheim City Manager and City Council at 1 (April 4, 1996).
---------------------------------------------------------------------------
    A pilot project was then begun in which INS personnel were 
actually stationed at the Anaheim Detention Facility to conduct 
interviews of arrestees. Begun in late April 1996 and 
originally scheduled to last two months, it eventually ran 
through July. The INS officers interviewed a total of 1,903 
inmates (through May), of whom 696--37%--were identified as 
foreign born and 451--24%--were determined to be illegal 
aliens.\3\ Of the 421 of this latter group against whom INS 
detainers were lodged, 189 were subsequently transferred to the 
Orange County Jail. While these individual would have been 
later identified by the IHP, the 232 others would have been 
``released to the streets'' were it not for this pilot 
program.\4\ Since the arrestees were interviewed prior to their 
first court appearance, in most cases INS could not use 
criminal convictions to justify deportation. Most of the 
illegal alien arrestees were given voluntary departure.\5\
---------------------------------------------------------------------------
    \3\ See Memorandum from John Brechtel, Acting Officer in Charge, to 
Richard Rogers, INS Los Angeles District Director, at 2 (June 18, 
1996).
    \4\ See id.
    \5\ See id.
---------------------------------------------------------------------------
    Encouraged by this successful pilot, Congress required in 
the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 \6\ that the INS detail employees for six months to 
local governmental incarceration facilities in the city of 
Anaheim and the county of Ventura in California. The employees 
were to identify, from among individuals incarcerated prior to 
arraignment on criminal charges, those who were aliens 
unlawfully present in the United States. During the operation 
of the pilot at the Anaheim Detention Facility, the INS placed 
holds on about 16% of the arrestees interviewed as being 
suspected illegal aliens.\7\
---------------------------------------------------------------------------
    \6\ Pub. L. No. 104-208, Div. C, Title III, sec. 329, 110 Stat. 
3009 (1996).
    \7\ Out of 2690 arrestees interviewed from November 1, 1996, to 
February 28, 1997, the INS suspected 428 of being illegal aliens. See 
Memoranda from Randall Gaston to Anaheim City Manager and City Council 
of Dec. 3, 1996, Jan. 3, 1997, Feb. 19, 1997, and March 7, 1997.
---------------------------------------------------------------------------
    H.R. 1493 would require the Attorney General to set up a 
program--subject to appropriations--to identify, from among the 
individuals incarcerated in local governmental jails and 
prisons prior to arraignment on criminal charges, those 
individuals unlawfully present in the United States or 
deportable on criminal or security-related grounds. The program 
would include the detail to selected jails and prisons of at 
least one INS employee with expertise in the identification of 
such aliens. The program would be limited to selected jails or 
prisons located in, and owned by, local jurisdictions having 
high concentrations of aliens unlawfully present in the United 
States or deportable on criminal or security-related grounds. 
The total number of jurisdictions selected to participate in 
the program shall begin at from 10 to 25 in fiscal year 1999, 
and rise to 100 by fiscal year 2003.

                                Hearings

    The Committee's Subcommittee on Immigration and Claims held 
one day of hearings on H.R. 1493 on May 13, 1997. Testimony was 
received from Representative Gallegly; Paul Virtue, Acting 
Executive Associate Commissioner for Programs, Immigration and 
Naturalization Service; Richard Bryce, Undersheriff, County of 
Ventura, California; and Randy Gaston, Chief of Police, 
Anaheim, California.

                        Committee Consideration

    On July 24, 1997, the Subcommittee on Immigration and 
Claims met in open session and ordered the bill H.R. 1493, 
favorably reported to the full committee, with a single 
amendment in the nature of a substitute and by a voice vote, a 
quorum being present. On September 9, 1997, the Committee met 
in open session and ordered reported favorably the bill H.R. 
1493 with amendment and by a voice vote, a quorum being 
present.

                         Vote of the Committee

    Two amendments were adopted by voice vote during 
consideration of H.R. 1493 by the Judiciary Committee. The 
first, offered by Mr. Cannon, provided that 20% of those 
counties, cities, towns and other local political subdivisions 
selected for participation in the program because of having a 
high concentration of aliens unlawfully present or deportable 
on criminal or security-related grounds must be in states that 
are not contiguous to a land border. The second, offered by Mr. 
Gallegly, provided that selected incarceration facilities must 
be ones that incarcerate or process individuals prior to their 
arraignment on criminal charges.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 1493, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 10, 1997.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1493, a bill to 
require the Attorney General to establish a program in local 
prisons to identify, prior to arraignment, criminal aliens and 
aliens who are unlawfully present in the United States, and for 
other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

H.R 1493--A bill to require the Attorney General to establish a 
        program in local prisons to identify, prior to 
        arraignment, criminal aliens and aliens who are 
        unlawfully present in the United States, and for other 
        purposes

                                Summary

    H.R. 1493 would direct the Immigration and Naturalization 
Service (INS) to provide immigration agents to local 
incarceration facilities in areas with high concentrations of 
illegal aliens or deportable criminal aliens. The agents would 
identify, from among the individuals incarcerated in such 
facilities, those who are deportable. The bill would require 
INS to establish this program in 10 to 25 local facilities in 
fiscal year 1999, 25 to 50 in fiscal year 2000, up to 75 in 
fiscal year 2001, up to 100 in fiscal year 2002, and in such 
number of facilities as specified in appropriation acts in 
fiscal years thereafter. H.R.1493 would require that each 
selected facility be staffed by at least one agent on a full-
time basis, including the portions of the day or night when the 
greatest number of individuals are incarcerated.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing H.R.1493 would result in additional 
discretionary spending of about $8 million in fiscal year 1999 
and about $80 million over the 1999-2002 period. By 2002, 
annual costs could reach $50 million a year if the program is 
operating at 100 facilities. This legislation would not affect 
direct spending or receipts, so pay-as-you-go procedures would 
not apply. The bill contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
of 1995 (UREA) and would impose no costs on state, local, or 
tribal governments.

                Estimated Cost to the Federal Government

    The estimated budgetary impact of H.R. 1493 is shown in the 
following table.

                                        SPENDING SUBJECT TO APPROPRIATION                                       
                                     [By fiscal year in millions of dollars]                                    
----------------------------------------------------------------------------------------------------------------
                                                              1997     1998     1999     2000     2001     2002 
----------------------------------------------------------------------------------------------------------------
INS Baseline Spending Under Current Law                                                                         
  Estimated Authorization Levela..........................    1,607    1,664    1,722    1,782    1,844    1,909
  Estimated Outlays.......................................    1,511    1,520    1,697    1,763    1,824    1,888
Proposed Changes                                                                                                
  Estimated Authorization Level...........................        0        0        9       18       24       37
  Estimated Outlays.......................................        0        0        8       17       23       36
INS Spending Under H.R. 1493                                                                                    
  Estimated Authorization Level...........................    1,607    1,664    1,731    1,800    1,868    1,946
  Estimated Outlays.......................................    1,511    1,520    1,705    1,780    1,847    1,924
----------------------------------------------------------------------------------------------------------------

    a The 1997 figure is the amount appropriated for INS 
salaries and expenses. The levels shown for 1998 through 2002 are CBO 
baseline projections, assuming increases for anticipated inflation. If 
the comparison were made to a baseline without discretionary inflation, 
the cost of the bill would be the same, but the baseline authorization 
level would be $1,607 million for each year.
    The costs of this legislation fall within budget function 
750 (administration of justice). The local prison assistance 
program authorized by this bill would constitute a new activity 
for INS. There is no spending for that activity under current 
law.

                           Basis of Estimate

    For the purposes of this estimate, CBO assumes that the INS 
would establish the program authorized by the bill in 18 
facilities in fiscal year 1999, in 38 facilities in 2000, in 50 
facilities in 2001, and in 75 facilities in 2002. Based on 
existing staff levels at other INS field offices, we estimate 
that each selected facility, on average, would need three 
immigration agents, plus two additional support employees, to 
meet the coverage requirements of the bill. This estimate is 
based on the number of foreign-born criminals incarcerated in 
the 100 largest local facilities in the United States and 
historical staffing requirements for the deportation process. 
Each INS employee, on average, would cost almost $100,000 
annually in the first year, including training costs, and 
almost about $90,000 in subsequent years. (In nominal dollars, 
the cost would be slightly below $90,000 in 2000, and would 
increase to cover anticipated inflation in 2001 and 2002.)
    Based on the above assumptions, we estimate that enacting 
H.R. 1493 would result in additional discretionary spending of 
about $80 million over the fiscal years 1999 through 2002. 
Costs could vary widely, however, depending on the total number 
of facilities selected for the program--which could range from 
25 to 100--and the number of agents assigned to each facility. 
Depending on how many facilities receive INS staff in each 
year, and the extent of such staffing increases, implementing 
the bill could cost between $40 million and $200 million over 
the 1999-2002 period.

                     Pay-As-You-Go Considerations:

    None.

              Intergovernmental and Private-Sector Impact

    H.R. 1493 contains no new intergovernmental or private-
sector mandates as defined in UMRA and would impose no costs on 
state, local, or tribal governments.
    Estimate prepared by: Mark Grabowicz (226-2860).
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, clause 4 of the 
Constitution.

                      Section-by-Section Analysis

   Section 1. Program of Identification of Certain Deportable Aliens 
                          Awaiting Arraignment

    Subsection (a) provides that within 6 months of enactment, 
and subject to appropriations, the Attorney General shall 
implement a program to identify certain individuals from among 
those who are incarcerated in local governmental incarceration 
facilities prior to arraignment on criminal charges. The 
individuals to be identified are those aliens not lawfully 
present in the United States and/or those aliens who are 
deportable pursuant to section 237(a)(2) of the Immigration and 
Nationality Act as a consequence of having been convicted of 
certain criminal offenses or deportable pursuant to section 
237(a)(4) of the INA on security or related grounds.
    Subsection (b) provides that the program shall include the 
detail to each facility selected pursuant to subsection (c) of 
at least one employee of the Immigration and Naturalization 
Service who has expertise in the identification of aliens 
described in subsection (a). The program shall also include 
provision of funds sufficient to provide for (1) the detail of 
such employees to each selected facility on a full-time basis, 
including the portions of the day or night when the greatest 
number of individuals are incarcerated prior to arraignment, 
(2) access for such employees to records of the INS and other 
federal law enforcement agencies that are necessary to identify 
aliens described in subsection (a), and (3) in the case of an 
individual identified as an alien described in subsection (a), 
pre-arraignment reporting to the court regarding the INS's 
intention to remove the alien from the United States.
    Subsection (c) provides that the Attorney General shall 
select for participation in the program incarceration 
facilities that meet certain requirements. A facility must 
ordinarily be located in, and owned by the government of, a 
county that is determined by the Attorney General to have a 
high concentration of aliens described in subsection (a). If a 
facility is not located in a county, it must be located in, and 
owned by the government of, a city, town, or other analogous 
local political subdivision that is determined by the Attorney 
General to have a high concentration of aliens described in 
subsection (a). The facility must incarcerate or process 
individuals prior to their arraignment on criminal charges. 
Finally, the owner of the facility must have submitted a 
request for selection to the Attorney General.
    Subsection (c) also provides that the number of counties, 
cities, towns and other analogous local political subdivisions 
requesting selection by the Attorney General and found by the 
Attorney General to have a high concentration of aliens 
described in subsection (a) must be between 10 and 25 in fiscal 
year 1999, between 25 and 50 in fiscal year 2000, not more than 
75 in fiscal year 2001, and not more than 100 in fiscal year 
2002. In subsequent years, the number shall be 100 or such 
other number as may be specified in appropriations Acts. In any 
fiscal year, not less than 20% of such counties, cities, towns 
and other local analogous political subdivisions must be in 
states that are not contiguous to a land border. All of the 
incarceration facilities located within (and owned by) Orange 
and Ventura counties in California that incarcerate or process 
individuals prior to their arraignment on criminal charges must 
be selected for participation in the program.

                      Section 2. Study and Report

    Not later than one year after enactment, the Attorney 
General shall complete (and submit to Congress) a study 
concerning the logistical and technological feasibility of 
implementing the program in a greater number of locations 
through the assignment of a single INS employee to more than 
one incarceration facility and the development of a system to 
permit the Attorney General to conduct off-site verification, 
by computer or other electronic means, of the immigration 
status of individuals incarcerated in local governmental 
incarceration facilities prior to arraignment on criminal 
charges.

                              Agency Views

    The Administration has not provided a statement of its 
views regarding H.R. 1493. Paul Virtue, Acting Executive 
Associate Commission for Programs, INS, did testify in 
opposition to the bill before the Immigration and Claims 
Subcommittee on May 13, 1997.