The full transcript from the Congressional Hearings is posted below:
CONGRESSIONAL TRANSCRIPTS
Congressional Hearings
July 24, 2008
House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law Holds Hearing on Immigration Raids
REP. ZOE LOFGREN, D-CALIF., CHAIRWOMAN:
This hearing of the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law will come to order.
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I’m also pleased to welcome Professor Robert Rigg. Mr. Rigg is — is an associate professor of law at Drake University Law School in Des Moines, Iowa. He is the president and founding member of the Iowa Association of Criminal Defense Lawyers and currently sits on the Iowa Supreme Court Attorney Disciplinary Bar. He previously sat on the Iowa Supreme Court Advisory Committee for Rules of Evidence and Rules of Criminal Procedure.
He has been published in the Boston University Public Interest Journal, the American Journal of Criminal Law, the T. M. Cooley J. Practice in Criminal Law and West Law’s Iowa Practice of Criminal Law.
He has been quoted on NPR by the Los Angeles Times, the Associated Press, Newsday, USA Today, and, finally and not unimportantly, the Des Moines Register.
* * *
LOFGREN:
* * *
Mr. Rigg, we’d be pleased to hear from you.
ROBERT RIGG, ASSOCIATE PROFESSOR OF LAW, DIRECTOR OF THE CRIMINAL DEFENSE PROGRAM, DRAKE UNIVERSITY LAW SCHOOL:
Thank you, Madam Chairwoman.
I intend to address a specific concern of mine — and I think of the Criminal Defense Bar — in the process that was used at the Postville raids and, subsequent to those raids, implemented in Waterloo.
The biggest problem that I have identified — or at least I feel this committee should address — is the compression of time that was imposed on defense counsel in this particular case. That caused a cascade of other errors that could have occurred and may have affected these guilty pleas. Whether or not they will down the road, we don’t know, and that is subject to judicial scrutiny, and that is subject to review by the courts, obviously.
When the process was designed, this compression factor essentially put lawyers — competent lawyers — in a situation where they had very limited time to make very difficult decisions with very limited resources. They simply didn’t have the time or the resources to do what they probably needed to do.
What that does is you can take the most competent lawyer in this country, and if you put them in a timeframe like that and you aggravate it by appointing them to 10 clients at a time and say, “You’ve got a week to make these decisions,” that process is inviting those lawyers to make mistakes, not intentionally, not purposely, but you have created a situation where essentially giving somebody a lawyer but you’ve tied their hands behind their back. That is not consistent with due process, in my view.
The other issues that tend to come up would be the individual representation by attorneys. Who came up with the number 10? Why 10? Why not 2? How come more lawyers weren’t contacted prior to this raid by either the judge, evidently, or by someone with the U.S. Attorney’s Office and brought into this so you would have more lawyers available?
So you have a number of questions posed initially that I don’t believe have been answered. I’m not sure that they can be answered. The one thing I am sure of, the people that don’t know the answers is the Criminal Defense Bar.
Prior to the adoption of these proceedings, to my knowledge, no one from the Criminal Defense Association — the national or otherwise — was consulted prior to the enactment of these fast-track rules. The normal course that we would use on the committees I’ve served on with the Iowa Supreme Court is that you would bring in opposing counsel and try to address pertinent issues prior to their occurrence so you can avoid situations where you’re having 10 clients being represented by one lawyer, who also maybe not have immigration experience.
The other problem, I — I guess, I have is the transparency of this process. This was an ambush essentially. There seems to be some security concerns by the folks from ICE about the Department of Labor being brought in on this. Well, obviously, you know, if there’s concerns about that, you’re not going to talk to anybody about this regarding the criminal defense side of it.
And lawyers, from my understanding, were told not to discuss the invitation they received to the federal courthouse in the Northern District of Iowa. That request was honored by those lawyers, they did not know, from what I understand, why they were being asked in, they didn’t know until after the raids occurred and were essentially brought in and given a ” how to practice law in federal court” manual.
Those — those lawyers who refused to participate, that manual was taken away from them. I don’t understand that. I don’t see why that manual would not be public record and should be made available to the members of this committee and to other members for its critique and criticism. It may be the best manual in — on the world, but unless somebody critiques it and looks at it and reviews it from the other side, well, we don’t know.
The other thing that — that troubled me about this is the access to immigration attorneys. The reports that I received — and just as soon as two days ago — from a lawyer who actually went up to Postville who was contacted by family to go in and interview a client was essentially turned away by the ICE officials. So you have a series of issues, but they all start to cascade with the compression of the time, the number of clients that were being asked to handle, and eventually I would criticize the lack of input by the Criminal Defense Bar.
Thank you. That’s all.
* * *
(RECESS)
LOFGREN:
The subcommittee will reconvene. Hopefully, the ranking member will be here shortly.
First, apologies. We thought that we would be back at — by 3:15, but we had more votes than we had anticipated, and we appreciate your patience and your willingness to stick with us on this.
We have just a couple of questions that we will be able to pose to all of you.
But before I do, let me just say to you, Mrs. Costner, what happened to you was really terrible and outrageous, and I don’t think there’s a person in the Congress who would defend what happened to you, and I appreciate that you were willing to come here and share your story. The individual that did that to you should have been prosecuted, and I think it’s — you know, I don’t see U.S. Attorney’s are here now. I don’t understand why they didn’t do their job to protect you and your family, and I just wanted to say that before getting into the legal questions for — for the others.
Let –let me ask you, Dr. Camayd (Erik Camayd-Frixas, professor of modern languages at Florida International University), you have been a translator for a long time, and I read the statement that you made that was available publicly after this raid, and I was struck by, in your statement, how shocked you seemed to be by the procedures that you encountered here and that it was your judgment that these individuals had no idea what was going on. And you’re, of course, the interpreter so you were in kind of the catbird seat to understand what people knew perhaps even better the lawyers because they couldn’t actually talk directly to the defendants.
In your — have you ever seen anything like this before in your 23 years as a — as a interpreter.
ERIK CAMAYD-FREIXAS, PROFESSOR OF MODERN LANGUAGES, FLORIDA INTERNATIONAL UNIVERSITY:
Never.
LOFGREN:
I think that’s quite revealing.
In your judgment, did these defendants understand the nature of these proceedings and the pleas that were — there were — there was a lot of representation that the defense counsel had advised them and they knew all the immigration issues. Did — did you observe that?
CAMAYD-FREIXAS:
Well, there were almost 300 individuals, and the level of understanding was different from one to the other. My determination is that the majority of them did not understand the — the charges or the rights that they were waiving. And I base that on several factors.
First, it is unclear to what extent the numerous ethnic Mayans understood Spanish as a second language. Then there are vast cultural differences between Mexicans and Guatemalan rural cultures on the one hand and American legal culture on the other.
And the most important factor is that, in my expert opinion as an educator, due to their lack of schooling and low rate of literacy, most of the defendants had a level of conceptual or abstract understanding equivalent to that of a third grader or less. So they clearly needed a lot more time, a lot more educating on a one-to-one basis on the part of the defense attorney to even come closer to understand what these things meant.
In addition to that, they were — they — they really were tuning it all out because the only thing — particularly the parents — the only thing that they cared about is how to get back to their families to look after their families so they were just listening to the time factor. “OK. If I do this, do I get home quicker,” or “If I do that.”
Particularly troubling was the waiver of the right to be indicted by a grand jury on felony charges. These were all felony charges. They basically at that point had no knowledge of the — of the plea agreement or the plea offer that the government was going to make so they basically were given false hopes that, if they waived the right to a grand jury indictment, they would go home faster. So they did.
LOFGREN:
Let me ask you this: You were — we had testimony that there were — the defense lawyers had been completely schooled on immigration law and that there were immigration lawyers in the facility. Is — did you observe that?
CAMAYD-FREIXAS:
I’m sorry. I — I didn’t —
LOFGREN:
That — that there — that the defense counsel was — had been instructed in immigration law and that there were immigration lawyers there at every stage helping the defendants understand. Did you see that?
CAMAYD-FREIXAS:
No. I — I — I didn’t see any immigration attorneys there. There were actually very few attorneys each day because, even though 18 defense attorneys participated, they would come in 3, 4, 5 each day. And I — I didn’t see any — any immigration attorney.
I also understood that the official policy was that these were criminal cases, not immigration cases —
LOFGREN:
Right.
CAMAYD-FREIXAS:
— therefore —
LOFGREN:
But they had implications once you plead guilty to this crime. Even if you had another benefit available to you under existing immigration law, that would then be foreclosed.
CAMAYD-FREIXAS:
Well, I — I did observe that some attorneys were able to call on immigration law colleagues —
LOFGREN:
OK.
CAMAYD-FREIXAS:
— but the — the issues were so complicated that sometimes they had to consult with two and three —
LOFGREN:
Right.
CAMAYD-FREIXAS:
— different lawyers, and they would get different indications.
LOFGREN:
Let me ask the two law professors, and I’m going to read from the affidavit that was filed in support of the application for the search warrant, and it’s point 85. I’ll summarize. The first part isn’t really that material.
“A search was conducted by ICE agents in the Accurate Database” — which, as we know, is the private-sector database — it’s highly accurate — “for the individuals’ Social Security numbers listed in second quarter 2007 payroll reports. This search revealed that approximately 878 out of 1,116, or 78.6 percent, of the Social Security numbers input into Accurate either did not appear to be associated with the person assigned to that Social Security number, or the number did not reveal any person associated with the number.”
What were hearing here from the government’s own affidavit is that 78 — well, let’s say almost 79 percent of the individuals didn’t have somebody else’s Social Security number, they had a made-up number.
How is that consistent, in your judgment, with the — the — the necessity to — to base a prosecution on — on evidence that the– the prosecutor’s burden to have the elements of the crime known and present before proceeding with a prosecution. Could you comment briefly on that?
DAVID LEOPOLD OF DAVID WOLFE LEOPOLD & ASSOCIATES, REPRESENTING THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION:
Well, that — that statistic, Madam Chairwoman, is very troubling. Eighty percent of these people apparently did not have — the Social Security number didn’t correspond to a real person. That draws into the real question, the whole use of the identity theft as a charge and really brings into question the Social Security charges.
I tell you, I’ve sat on the CJA panel Northern District of Ohio now for 10 years that handles criminal cases in addition to my immigration practice. I would love an opportunity to cross-examine the affiant here about that because what he seems to say in this paragraph at the end is, “Well, this evidence didn’t really add up, but so what. I’m an expert. Believe me.” So it’s very troubling.
RIGG:
I –I concur with Mr. Leopold’s analysis there. The two parts of that paragraph seem to be inconsistent, but, again, that’s something that would have been submitted to a judge. But that’s the type of information you would want a preliminary hearing on.
LOFGREN:
Well, if I — I — I may — may time is running out, but it just seems to me that the — the prosecutor’s obligation is first to do justice, not to just to get convictions. It’s to, as an officer of the court, to make sure that justice is done. That’s the whole system. And if the elements of the crime, by the government’s own attestation under oath, aren’t there, how can the prosecutors, consistent with their ethical obligations, proceed? I just — I — I have a concern about that.
My time has expired so I am going to turn to the ranking member for his five minutes of questions.
REP. STEVE KING, R-IOWA, RANKING MEMBER OF THE SUBCOMMITTEE:
Thank you, Madam Chair.
I’m going to turn first to Dr. Camayd, and I don’t see it in your written testimony, but what I think I heard you say was that the — the subjects of this raid endured cruel and unusual punishment. Did I hear that correctly?
CAMAYD-FREIXAS:
Yes, sir.
KING:
And I just can’t help but reflect that the Supreme Court has conferred habeas rights on enemy combatants and also conferred Geneva Convention status to enemy combatants, and I have — I’m looking at this as being precisely language from the Eighth Amendment of the Constitution, cruel and unusual punishment. Were you advocating that those defendants then would bring — would bring a case to have their constitutional rights protected?
CAMAYD-FREIXAS:
No, sir. I — I — I don’t have an opinion about that.
As an interpreter, part of my job is to interpret the meaning of what people are saying, not just the words. In order to do that, I have to put myself in the position of the individuals I’m interpreting for, whether they are attorneys or witnesses or defendants. And when — I did that for 14 hours in — in — during the jail interviews on a Friday and Sunday, and I was able to put myself in each individual situation, and I was talking specifically about the parents who were worried sick about their children —
KING:
OK.
CAMAYD-FREIXAS:
— and their families and having to basically spend the next five months at every moment of their waking hours just consumed with this — with this worry.
KING:
And — and I understand that’s part of your earlier testimony and I — and I agree with you that a good interpreter interprets not just the words, but voice inflection, words unsaid, body language — all those things together. And I read the words in your testimony too and — and some of them are — they’re inflammatory to me. And so I’ll just leave that there and — rather than belabor that point.
And I — I would turn then — first, I wanted to make a little comment about Mr. Rigg’s testimony. First, I think it’s the most reasonable of the majority’s witnesses here. And you made two points: One, that the compression of time imposed limits on attorneys that may have — may have put their — the defendants’ rights at risk. I think that’s a valid point, and I don’t know if it’s — I don’t necessarily agree or disagree with it. I just think it’s a good point to have raised. Then the — you referred to as an ambush — I think a surprise — to the attorneys who were drawn into this process. That’s how I interpreted it.
I just wanted to say to you that, being on the Iowa Supreme Court Advisory Committee, I have a certain amount of envy that I’m not on that advisory committee.
So I’m — instead of asking you a question, I would just take a little license here, and in the time that is remaining, I really want to turn to Mrs. Costner and say I recognize how difficult this was for you to be here today. I appreciate the chairman’s cooperation in that, and I know that you had to overcome a — a — a fair amount of intimidation just from the very fact of this being Congress to come here and testify, and I think the way that you went through your testimony and got to the end of it and actually compressed it within the five minutes, I want to thank you. And I know there are members on both sides — the Democrats and Republicans — that know how difficult this was. And that’s the way citizens serve this country. You have done that.
But I’d — I’d ask you, are you finished? Do you know that the identity theft is over, and how would you know if it was?
COSTNER:
I was told that I would — we would never know, that, unless we changed our names and Social Security numbers, that they would always be out there. And the IRS told me that we would get tax notices for ’06 and ’07. I just don’t know when they’ll be here.
KING:
Do you know the — the initial perpetrator — do you know where he is now in the — in the legal process?
COSTNER:
They — they let him go. They said that it was not illegal to use someone’s name to obtain employment.
KING:
But he was — he was — was he never ordered deported from the United States?
COSTNER:
That’s what the D.A. told us was going to happen when we left court, but then they —
(CROSSTALK)
KING:
But it didn’t happen. And we’re very — we’re very familiar with those circumstances by which we’re short of law enforcement personnel in a lot of ways, and I just say as a matter of — statistically — two of my staff people have been hit by drivers who were illegal, and in each case law enforcement took the information, took the Matricular Consular card number, they knew very well it wouldn’t hit a — wouldn’t hit a positive hit on the database, turned them loose. And even though, when I send my chief of staff to town to try to get enforcement, we can’t get it even in my own staff.
So I — I just — I — I thank all the witnesses — I know we have strong emotional feelings, and as emotions come out in your testimony, Dr. Camayd, and I — and I actually think some of that was plenty. And I — I appreciate the professionalism that comes here when it arrives, and I know how it was most difficult for Mrs. Costner, and, again, I thank you for your testimony especially.
LOFGREN:
The gentleman’s time has expired.
I would turn now to the gentleman from Illinois Mr. Gutierrez.
REP. LUIS V. GUTIERREZ, D-ILL.:
Thank you very much.
Let me share with Mrs. Costner thank you for coming and bringing your testimony before this committee. I think it’s very valuable information and testimony for us. We need to do more about identity theft, and I thank you for your testimony. I think it will help us here. At least I’m — I’m very hopeful it will help us here.
Let me go to Mr. Camayd. We heard Ms. Costner’s testimony about identity theft. It sounds to me like the gentleman who stole her identity committed aggravated identity theft. Would that be your opinion?
CAMAYD-FREIXAS:
Absolutely.
GUTIERREZ:
And I just want to see how that relates to your experience in being an interpreter and what the people were charged. Were the — was there any evidence of this kind of critical criminal intent — as using someone’s identity, Social Security number — and causing the kind of harm that was caused to Mrs. Costner and her husband?
CAMAYD-FREIXAS:
Well, I — I expressed to Mrs. Costner how sorry I was for what happened to her during the break. And I want her to know, for her peace of mind, that the individuals that I saw in this case in Iowa were just hard-working people and, in fact, only 5 out of 389 (inaudible) had any kind of criminal record.
So if — if — one of the issues that — that bothered me about the case in Iowa is that individual circumstances of each case were not considered. And I think that, when we look at the very unfortunate case of Mrs. Costner, as well as issues as to whether illegal workers are good or bad for the country, I think it — I keep going back to that situation and saying, “Well, how can we apply these broad issues to the individual cases if we don’t know the facts of — of each case?”
GUTIERREZ:
And so of the people that you helped interpret for, there was no evidence — in your — in your testimony you seem to really stress the difference between the — the aggravated identity theft and the use — the improper use of a Social Security card. Would you — what’s the difference?
CAMAYD-FREIXAS:
Well, aggravated identity theft was a charge created by an act of Congress in 1998. It — for almost 10 years, it had been used for its proper purpose and meaning. And it was only until the middle of 2007 that it began to be used in immigration cases, basically in presenting false documents to obtain employment. So it seemed like it was a — a way of testing the waters until in Postville it was applied on a — on a large scale.
But the Department of Justice Web site has a — a — a very good page on identity theft. It explains what it is. It gives several examples. The examples it gives pertain to people who have stolen identity to charge sometimes hundreds of thousands of dollars under somebody else’s name, that — that — that type of —
(CROSSTALK)
GUTIERREZ:
— that is to use somebody’s identity to commit a crime?
CAMAYD-FREIXAS:
That is correct.
And also it remits you to the actual statute, and the language of the statute is that identity theft is using somebody else’s identity to commit a crime under the false pretense of — of — of being another person.
GUTIERREZ:
Let me — let me just follow up because I’d — I’d like to ask Mr. Leopold. So when I read, “If you plead guilty to the charge of knowingly using a false Social Security number, the government will withdraw the heavier charge of aggravated identity theft” — and this is from the interpreted — this was the plea agreement, which the assistant general attorney had a little bit of problem but not much problem with. I mean, this is basically what the interpreters are saying, that they had — that the defense counsel was giving to their client.
What’s wrong with that? What in essence is — is there anything wrong with an attorney — with a U.S. attorney or the federal government accusing somebody of something and then offering them a lesser plea? What’s wrong in this case?
LEOPOLD:
Well, what’s wrong with it is is apparently there was very little evidence to convict them even on the lesser plea. And what they did was they compressed this whole situation by use of what’s otherwise known as an exploding plea agreement, which was seven days long or it ended. So that — that compressed timeframe, coupled with the fact that most of these people — or all of them — their real intent was really to get out and work and feed their families again, and their real — this whole situation banked on the fact that the — that the workers really didn’t understand the nature of the charges against them.
What was wrong was to use that kind of leverage in this particular case and to try to criminalize — successfully criminalize as many undocumented workers as they did when, in fact, all they were trying to do was feed their families.
GUTIERREZ:
And one last question. Would you — if it’s an immigration case, would you take any lawyer for a — is there a particular reason you want an immigration lawyer to deal with an immigration case?
LEOPOLD:
Well, look, absolutely, Congressman. The — the — the travesty here is that these pleas that were given could not possibly have been given knowingly because there was not adequate advice of immigration counsel. And in — in a criminal case involving a noncitizen, part and parcel of the defense is an analysis of the immigration consequences.
In Dr. Camayd’s essay, there was a discussion of a man from Guatemala, and as — as the chairwoman mentioned, Guatemala has a — a rather checkered history with — with human rights violations. Many of these farmers were from Guatemala. There — there were probably asylum claims in there. There were probably people that needed protection. All they needed to do — all the U.S. Attorney’s Office needed to do and should have done and failed to do was ensure that immigration advice — competent, thorough immigration advice was available to all of these detainees.
LOFGREN:
The gentleman’s time has expired.
The — the gentleman from California Mr. Lungren is recognized.
REP. DAN LUNGREN, R-CALIF.:
Well, I’m sorry I missed a — a good portion of this while I was tending to other things, but I guess I’ve been here long enough to see what the hearing’s all about. ICE screwed up. Labor Department screwed up. U.S. Attorney’s screwed up. Court screwed up. There’s no criminality here. People like Mrs. Costner, who have their identity stolen and suffer the consequences, we apologize to you, but, you know, no one really did anything wrong here. They just took your identity.
I have been in this place 14 out of the last 30 years working on immigration issues. I thought that we solved this problem in 1986 when we had the largest, most generous legalization in the history of this country, which, by the way, was not very particularized. There wasn’t much you had to prove to them and we –we managed to legalize millions of people, but we did not enforce the law.
And people think the comments here about the federal employees who worked on this are not going to deter them from doing their job, I think they’re sadly mistaken. We’ve been told that they were cowboys, that they were rogues, that they had no consideration for the rights of anybody. Now, maybe that’s true. Maybe this was wholesale. Maybe every single ICE officer disrespected the rights of everybody else. Maybe the U.S. Attorney’s Office did it completely. Maybe the Labor Department was involved in some sort of grand conspiracy with the — with Department of Homeland Security. But, frankly, I find that a whole lot hard to swallow.
Ms. Costner, when — when you lost — when your identity was lost and taken by somebody else, were you concerned whether the person was doing it for a reason they considered to be good? Would that have made a difference in terms of the implications with you, the impact on you?
COSTNER:
No. When I went to court with the lady, I actually was in a position to where I felt sorry for her, but I still owed $8,000 and had lost a big part of my life.
LUNGREN:
This upside —
COSTNER:
I mean, I’m still —
LUNGREN:
Did this turn your life upside down?
COSTNER:
Yes. And —
LUNGREN:
So it’s not a victimless crime? I mean, you were a victim in this?
COSTNER:
And will be the rest of my life.
LUNGREN:
But what we hear in Congress mostly is to blame the Social Security system because they didn’t do a good enough job in it and because we don’t check well enough. I mean, at some point in time, I hope people understand folks have to take responsibilities for their action. And it is illegal to come into this country when you don’t have a basis for coming to this country. It is illegal to take a job when you don’t have a right to have a job.
And I will continue to talk about this until something is changed. We have an unbelievable crisis in this country, a scandal in this country with the unemployment among young African-Americans age 17 to 35. I dealt with it when I was attorney general. We were dealing with the high rate of incarceration of that group, and one of the concerns was where are the jobs? And I hope we will not forget about that. But I — I hear very little about that.
And, you know, when — when you’re trying to balance the scales of justice, we ought to treat people fairly, they ought to have the right to — to have a fair hearing, they ought to have the right to have lawyers, but let’s also remember the other side of the — the balance here. There’s people like Ms. Costner who —
COSTNER:
Had to pay for my lawyers.
LUNGREN:
And — and your life’s been turned upside down.
COSTNER:
Yes. I mean, it’s —
LUNGREN:
Now, no — maybe no one intended that, but that’s what happens when people steal identity here, and it’s almost as if we’re saying —
LOFGREN:
Would the gentleman yield?
LUNGREN:
— it’s not that big a deal.
I’ll be happy to yield but I — I mean I’ve sat here and heard questions while I was here.
LOFGREN:
I — I don’t think you had arrived yet when all of us expressed concern about —
COSTNER:
Correct.
LOFGREN:
— Mrs. Costner’s —
LUNGREN:
Oh, I understand that.
LOFGREN:
— situation and also expressed the view that the perpetrator should have been prosecuted and deported. But here’s — and I thank the gentleman for yielding — the affidavit filed by the government based on their search says that 80 percent of the individuals didn’t take somebody’s Social Security — it was a number that — it — it wasn’t somebody’s Social Security number. It was a made-up number not attached to any real person. And I think that is one of the issues that at least is of concern here is there — there was no victim because there was nobody who had the number.
And I thank the gentleman for yielding.
LUNGREN:
I appreciate that.
You know, we have a schizophrenic country. On the one hand, we want to deal with illegal immigration and enforce the law. On the other hand, we want to have people here to take jobs that, quote- unquote, “Americans won’t take.” And I think there is an area in which that applies, and that’s why I’ve been working for 30 years to get a temporary worker program and to get some legal means to do it.
But I — it’s my observation the American people will not allow us to do that until they believe we have the enforcement side in control. And when they see the impact of phony Social Security cards or stolen identity, that does not give them great confidence that we have this under control. And — and my fear is that we will never get to the point of having that temporary worker program, having those means by which we can determine how many people should come here, take them out of the shadows of illegality so they have the protections of the law unless we take enforcement seriously.
And my bottom-line concern is that the hearing seemed to be directed at an agency that screwed up. And I suppose we might find a raid where they actually did things right. And maybe we —
LOFGREN:
We’ll — we’ll keep looking.
LUNGREN:
Well, I know. We’ll — we’ll keep looking, but that’s very encouraging to the people at ICE as we’ve been told that we have great respect for them and the work they do and then we just constantly tell them they’ve done a terrible job.
If I sound frustrated, I am frustrated because I’ve worked for 30 years to try and get a solution here, and one of the — one of the results of not having a solution is Ms. Costner, is what you had to go through, and unless we get a grip on this, many others are going to go through that. And we’re all going to invite you here, and we’re all going to apologize to you, say we’re sorry it happened to you —
COSTNER:
Pass around the hat.
LUNGREN:
Yes, we’ll pass around the hat. But we won’t do anything about it. So I’ll — I’ll add my apology too, but the best apology we could make to you is when we actually pass a law that deals with this and — and puts it on the right track.
Thank you very much.
LOFGREN:
The gentleman’s time has expired.
I recognize the lady from — gentlelady from Texas Ms. Jackson Lee.
JACKSON LEE:
Thank you, Madam Chairwoman, again.
I associate myself with the latter words of my good friend from California. We do have to pass a law, Ms. Costner, and I would start with you simply to say that I am outraged about what happened to you. As I looked over your very eloquent statement, this is, I think, the thrust of my comments. I want the bad guys, the ones who are stalking you, who are criminally calling you up on the phone and ridiculing you. I want the guy who speeded and got a speeding ticket to be deported. And the outrage is where was — why was there a disconnect? The local law enforcement could have taken the gentleman in and called the federal law enforcement right there. That’s the kind of criminal bad guy that you want to be gone. Obviously, we’d like a lot of — of these incidences to not occur.
So I — my — my question, I know that you are not an expert in federal law — and I see this other individual who you felt sympathy for — but there was a purposeful use of your identification, and I don’t want to stereotype a profile, but I would think your name is slightly different. Maybe they — they perceived you to be — this individual to — to certainly have the ability to have maybe a name as yours. But it might have been an indicator to ask a few more questions.
And so I think obviously and conspicuously on the face of your facts we could have helped you. And I apologize for the lack of coordination. We’ve — we’ve advocated that there should be coordination. We don’t think local law enforcement or federal law enforcement. But if this person was poised to be deported for conspicuous, reckless criminal actions — I’m talking about the first individual, who seemingly began to stalk you — that should have occurred.
And I just simply ask you the question would you — would you like to see, as we look to try to fix this immigration system, that our law enforcement goes after those who are poised or are already in the act of criminal acts that already violate the criminal laws? If you were doing this, that would be against the law. Should we be putting resources there to — to get those kind of people?
COSTNER:
Yes. But I — I — I would like to see them here going through the channels to be here legally so it’s not a question and they don’t have to steal an identity to work to feed their families.
REP. SHEILA JACKSON LEE, D-TEXAS:
Well, you are very — you’re very gracious, and I just want to apologize to you and — and thank you for your testimony —
COSTNER:
Thank you.
JACKSON LEE:
— and for being here, and we will certainly look at some of the fractures in the system that caused this individual — the first individual that took your husband’s ID, of course — to — to treat you in that manner, and I thank you for your testimony.
Let me go to Mr. — to Leopold. I — I went down this line of reasoning with the — the representative for the DOJ and the — and the ICE, which is to suggest that there may have been some thinking as relates to putting forward these criminal charges knowing that criminal charges placed on individuals who, as you had indicated, come from places like Guatemala may have been simply farmers who were trying to — to come here for economic opportunity, albeit that they were undocumented, that placing them in this criminal predicament — in this criminal charge predicament would have then cast them as felons and made their journey back home more difficult or their journey and their ability to return more difficult.
What do you think about that kind of thinking?
LEOPOLD:
Well, the criminalization of — of undocumented farmers really goes nowhere. Yes, it does brand them as — as felons. And — and you’re correct, once somebody’s branded as a felon, it creates all kinds of problems later on with respect to admissibility to the United States. Not everybody who’s deportable who’s a felon, but many are. Many people who are felons, it’s — it’s impossible to be admitted. There’s no 10-year bar. I think I heard the — the representative from the Department of Justice talk about a 10-year limit. I don’t know of any 10-year limit. It’s a lifetime limit.
JACKSON LEE:
It’s a lifetime.
LEOPOLD:
It’s a lifetime limit.
JACKSON LEE:
That’s right.
LEOPOLD:
You’re correct. And — and absent a waiver — and even — even then, you have to show a — a qualifying relative. It becomes extremely, extremely complicated.
JACKSON LEE:
I don’t want to cut you off, but my time, and I’d like the other three gentlemen.
I don’t want us to get tainted as unpatriotic because we are arguing for a sense of balance, but I need some help. I know that you’ve been engaged in this. The use of resources used like this raid, help me find a more effective pathway. I’ve looked at the numbers: 104 raid teams and we look to get 4,000 in 2008, immigration lawyers being utilized, other resources. Is there a — is this an effective tool for — for enforcing immigration laws or putting the system right-side up?
You want to start Mr. Rigg?
RIGG:
Thank you. I — I don’t think it is the most effective tool. You can make an argument that, yes, we achieved what we set out to do if you’re ICE if we removed individuals who were undocumented, we’re getting them out of the country, we’ve now prosecuted them, and you can claim some success with that.
Was the overall process a fair one? That’s where I have real problems. And the — the — the purpose of the criminal justice system is to make sure that we get at the truth and that justice is in fact done. And — and critical resources have to be devoted, not only to ICE and to the Department of Justice, and they also have to be devoted to the Judiciary and the Criminal Defense Bar, and everybody seems to overlook the Criminal Defense Bar and give them, I think, the opportunity to have some input into this and maybe make suggestions that — that might actually serve ICE’s purpose better.
JACKSON LEE:
Mr. Leopold, could you quickly just answer the effective use of resources?
LEOPOLD:
The most effective use of resources, Congresswoman, would be to fix the broken immigration system. As Congressman Lungren pointed out, it is broken, and it does need to be fixed. And this is a symptom — the — the terrible story that we hear from Mrs. Costner, other stories. This is the symptom of a broken — badly broken immigration system. And, frankly, Congress needs to roll up its sleeves, get down to the — the nitty gritty of fixing the system. It’s not going to happen overnight, and it’s going to take a lot of hard work. And — and, frankly, I implore Congress to do — to do this about it.
LOFGREN:
The gentlelady’s time has expired.
JACKSON LEE:
I — I thank the distinguished chairwoman and — and I will just say, Chairwoman, in — in closing my sentence, I think we need to ask the president of the United States, which has to be a partner in signing a bill, and I personally ask him if he would take in these waning months leadership on helping turn this system right- side up.
I yield back.
Thank you.
LOFGREN:
Thank you.
The gentlelady from California Ms. Sanchez is recognized for five minutes.
REP. LINDA T. SANCHEZ, D-CALIF.:
Thank you to the chairwoman for holding this hearing because I think, although it’s been a long day, it highlights several issues that I think speak to the fundamental nature of what are we as a democracy.
And while I don’t want to diminish the terrible circumstances that Ms. Costner’s gone through, in listening to — in reading through some of the testimony, it’s clear that the workers who were using Social Security numbers that were not assigned to another individual, their intent was not to wipe out somebody’s bank account, charge up thousands of dollars on their credit cards or steal their pension, it was simply to work. And I think in all the panels we’ve heard at some point or another people say we need to fix a broken immigration system; otherwise, these types of things are going to continue to occur. And there will be criminals, like the criminal who stole Ms. Costner’s identification, who will go unpunished. But there will also be hard- working people who are just trying to feed their families or trying to make a better life for themselves or escape repressive regimes in their home countries of origin who are also going to get caught up in unfortunate circumstances because I consider some of their circumstances very unfortunate as well.
What particularly concerns me about this raid is the question of due process rights, and much has been made about the fact that the taxpayers pay for it. Well, you now what? It’s a constitutional guarantee that, if you cannot afford an attorney and you’re being charged with a crime in this country, one is provided for you. And yet, you know, people seem to make light of the fact that, hey, as long as you’re given an attorney, what are you complaining about? Well, if you don’t have a reasonable way to participate in your own defense, if you don’t have a understanding, a basic grasp of what you’re being charged with, how can you really make informed decisions in a criminal process? And the compressed timeframe, I think, only underscores the egregiousness of the due process that was not afforded to many of these — many of these workers.
In my Subcommittee on Commercial and Administrative Law, we’ve heard testimony under Operation Streamline and in Postville defense lawyers were being assigned up to a dozen clients at once and given less 30 minutes to, number one, meet and educate the client themselves; number two, decide whether the client was competent to stand trial; number three, determine whether there is a defense of citizenship or duress, a lack of intent or a need for pretrial motions to suppress evidence or statements due to constitutional violations; and, number four, learn personal information which might mitigate a sentence and a whole host of other things. Thirty minutes was granted to each of these people.
I — I want to ask Mr. Leopold and Mr. Rigg, in your professional opinion, can any defense attorney adequately and ethically execute their — their duties in less than 30 minutes to a client, and especially in a case where they have to interpret with somebody who doesn’t speak the language? Does 30 minutes seem like a sufficient amount of time?
LEOPOLD:
Well, I — you know, I can speak from experience as a CJA panel attorney myself that 30 minutes is enough time to — to shake the client’s hand and get to know — get to know their name. Of course, not, Congresswoman. Of course, not.
You — you know, and — and couple that — couple that with this compressed plea agreement — and by the way, I don’t know — nobody’s ever explained the — the representative from the Department of Justice or the U.S. attorney — nobody has ever explained why did they have to impose this seven-day deadline on the plea agreement? Why?
There was absolutely no reason to do that other than to pressurize, not only the panel attorneys — the CJA panel attorneys — who, by the way, did a valiant job out there in Iowa — but to — to — to pressurize the clients into taking these pleas. I know of no situation in my experience — and I’ve asked other attorneys — where — where this type of — of plea agreement was used.
SANCHEZ:
Mr. Rigg?
RIGG:
I’m also the director of the Criminal Defense Program, and one of the things I do is I supervise students in criminal cases. I would fail any student who took 30 minutes to advise a client on a misdemeanor charge to plead or not to plead, much less do the analysis that you’ve described. Essentially what you’ve described is a violation of every standard of the ABA standards of a prosecution function and defense function.
SANCHEZ:
Thank you. I appreciate your honest answers to that.
Mr. Camayd — did I pronounce that correctly?
CAMAYD-FREIXAS:
Camayd.
SANCHEZ:
Camayd.
To the best of your knowledge, did any individual who you interpreted for refuse to answer questions during ICE’s processing?
CAMAYD-FREIXAS:
I was not present during that questioning session so I — I wouldn’t be able to answer that.
SANCHEZ:
OK. So you don’t know if any during processing asked for an attorney at that point either?
CAMAYD-FREIXAS:
I’m sorry?
SANCHEZ:
If any individual during the processing asked for an attorney?
CAMAYD-FREIXAS:
I — I do not know that.
SANCHEZ:
OK. I just want to ask one final question, and I would beg the chair’s indulgence as I did not get a chance to question any of the previous panels.
Clearly, there seems to be a problem with this particular instance in terms of whether people had a knowing and a — a — and a full understanding of what they were doing before they entered their plea agreements.
I want to know from our panelists — Mr. Leopold and Mr. Rigg — what is the potential harm to the American system of justice when we allow criminal prosecutions to go forward in this manner? I mean, if — if it can happen here, can there not be other instances in which it can happen? And then what does that do fundamentally to the American system of justice?
LEOPOLD:
Well, Congresswoman Sanchez, if you could imagine for a second how we would react if we heard of a group of Americans overseas in a foreign country being rounded up into a cattle pen and prosecuted in seven days. I mean, the whole spectacle itself demeans our system of justice and stands as a stain upon this system which we all — we all cherish.
These types of — of precedents in terms of the type of prosecution as it was done out there is a terrible precedent, a terrible way to — to handle justice and — and I would respectfully submit that it shouldn’t ever happen again.
SANCHEZ:
Thank you.
Mr. Rigg?
RIGG:
I — I think anytime you value high turnover and economy of justice, that’s exactly what you get, that you don’t get justice, and you probably are going to violate due process in doing so. And anytime the American system — and every day the American system is put on trial, and are we getting it right and — and it’s rightfully tested by the careful arguments between defense counsel and prosecutors with a neutral and detached judge. And when you take any part of that component away, you are guaranteeing at some level you’re going to create a problem.
SANCHEZ:
All right. One final question and I — I — I can’t resist asking this because Mr. Leopold said, “If you could imagine this happening to Americans overseas.”
What if U.S. citizens here in the United States — here in the United States were rounded up and arraigned 10 at a time and processed and given plea agreements? What — what can you imagine would happen here if American citizens were treated like that under our system of justice? LEOPOLD: Well — SANCHEZ: Because it seems to me that there’s an inherent bias if they say, “Well, it’s fine because, you know what? These people don’t matter anyway. They don’t really count.”
LEOPOLD:
Well, I — I — I think that’s an astute point. I — I think that we wouldn’t see that kind of — that kind of roundup of U.S. citizens.
You know, in the panel cases that I’ve done in the Northern District of Ohio involving big — big cases with a lot of — a lot of defendants, it’s always one lawyer to one client. I’ve never seen 17 clients to one lawyer, 15 minutes or 30 minutes to — to speak to the client.
You know, in this case — this is the immigration law, this huge book. I don’t know how you can explain this in — in — in 30 minutes to somebody, let alone the — the — the enormous consequences of taking a plea.
SANCHEZ:
Any further comment from any other panelists on that?
LOFGREN:
The gentlelady is granted one additional minute for an answer —
SANCHEZ:
Thank you.
LOFGREN:
— and then we will be —
SANCHEZ:
I will yield —
LOFGREN:
— adjourning the — the hearing.
CAMAYD-FREIXAS:
Yes. I — I — I want to make clear that I believe everybody here is in favor of enforcement but done the right way. The consequences of not doing it the right way, we don’t have to look too far to find them, and Mrs. Costner’s case is a — is a case in point.
Related to this case, I heard of situations in which the authorities were called about an individual similar to in the case of Ms. Costner’s, and they’re response was, “You have — you have only one guy?” They said, “No. We can’t take care of it.” In this case, obviously, there were 700 warrants so this is what attracted the attention of law enforcement.
I also wanted to point out that I want to dispel the myth that the target was the employer. As a matter of fact, one of the three charges, which was very much related to the Social Security fraud charge, was use or possession of false identity document with intent to deceive. Now, that — that phrase “with intent to deceive” isn’t really to intent — with intent to deceive the employer. So that held the employer harmless. Not only that, but that made it a crime of moral turpitude, which renders the convict ineligible to even apply for immigration relief.
SANCHEZ:
Thank you.
I’ll just — before I yield back my time — will make one last comment, and that is I find it interesting that, when we talk tough about getting tough on illegal immigration, we always talk about criminalizing the immigrant. We never talk about criminalizing the employer. And I think that, if we made it a criminal penalty to knowingly hire somebody who was undocumented, I think a large part of our immigration problem might be solved. But the employers are typically only let off with a slap on the wrist or a fine, if that.
And with that I will yield back the balance of my time.
LOFGREN:
The gentlelady’s time has expired.
The ranking member has asked to be recognized for a brief comment.
KING:
Thank you, Madam Chair.
This — this committee is poised to adjourn with a misconception hanging in the air, and I’d direct the attention to page 10 of Ms. Rhodes’s testimony — the U.S. attorney from Alabama — who in her testimony says, “Nearly all of the defendants sentenced to time served had admitted using identification information that belonged to other people.”
And the specific of it are this: 233 are false use of identification after admitting the use of an actual person’s identity, 30 for false use of Social Security number after admitting the use of an actual person’s identity and 2 for false identification to obtain employment after admitting an actual person’s identity.
So the idea that it’s a minority, rather than majority, almost all — nearly all defendants used somebody else’s identity, somebody like Mrs. Costner.
Thank you, and I yield back.
LOFGREN:
Gentleman yields back.
I will just note that this — the ranking member’s comment really proved the point of the lack of due process because there was an admission to something that was not true. The evidence, which is found on page — on point 85 of the application for the search warrant, shows that the evidence is that 80 percent of these people had a number that didn’t belong to anybody, and so really it does got to the due process question of whether these individuals were — pled guilty to something that there was no factual basis for.
LUNGREN:
Would the chair — would the chairlady yield on that?
LOFGREN:
I certainly would.
LUNGREN:
I believe that affidavit deals with the over 700 people that they were talking about in the first instance, about half of which, I believe, were not at the site at the time that the exercise by — by ICE took place, and the number that the ranking member was talking about was the number that actually pled, which is a much smaller number than the overall 700.
LOFGREN:
I — I concede the gentleman’s point. The further point being that, since there was no — there was no trial, there was no facts gathering, the only evidence we had was this, and there was no way to sort the individuals who, in ignorance, pled guilty from those who — the 80 percent that did not have a number.
I’m not going to belabor this point because we have been here all day. I do want to thank all of the witnesses. People don’t realize that the witnesses are volunteers for our country come here of their own free will to share information, to inform the Congress, hopefully, to improve our country.
I — I will say that I personally find the processes used in the criminal proceedings to be unusual and provocative and do have questions about whether they meet the requirements of due process that is guaranteed in our constitution.
Looking at you, Mrs. Costner, I’m so disappointed. I mean, the law, really, required ICE to do something they didn’t do. They were busy doing things with people who weren’t doing people harm, and they wouldn’t take the time to — to deal with your situation when harm was done, and that is really just so maddening to me and, I think, to all of us.
So we will be adjourning now. Our hearing is open for five days. We may have additional questions in writing for you, and if so, we would ask that you respond as promptly as you can.
And, again, many, many thanks to all of you for being here and for helping to shed some light on this situation.
Before adjourning, I will just note that Mr. Gutierrez will be — and several other members of Congress — will be going to Postville — at their own expense, not at — not as a part of — official part of this committee — to investigate matters further this — this weekend, and we look forward to getting their feedback after that trip is concluded.
And with that, this hearing is adjourned.
July 24, 2008
List of Panel Members and Witnesses:
PANEL MEMBERS:
- REP. ZOE LOFGREN, D-CALIF. CHAIRWOMAN
- REP. LUIS V. GUTIERREZ, D-ILL.
- REP. HOWARD L. BERMAN, D-CALIF.
- REP. SHEILA JACKSON LEE, D-TEXAS
- REP. MAXINE WATERS, D-CALIF.
- REP. BILL DELAHUNT, D-MASS.
- REP. LINDA T. SANCHEZ, D-CALIF.
- REP. ARTUR DAVIS, D-ALA.
- REP. KEITH ELLISON, D-MINN.
- REP. ANTHONY WEINER, D-N.Y.
- REP. JOHN CONYERS JR., D-MICH. EX OFFICIO
- REP. STEVE KING, R-IOWA RANKING MEMBER
- REP. ELTON GALLEGLY, R-CALIF.
- REP. ROBERT W. GOODLATTE, R-VA.
- REP. DAN LUNGREN, R-CALIF.
- REP. J. RANDY FORBES, R-VA.
- REP. LOUIE GOHMERT, R-TEXAS
- REP. LAMAR SMITH, R-TEXAS EX OFFICIO
- WITNESSES:
- REP. BRUCE BRALEY, D-IOWA
- REP. SHEILA JACKSON LEE, D-TEXAS
- REP. LYNN WOOLSEY, D-CALIF.
- REP. DAVID DAVIS, R-TENN.
- DEBORAH RHODES, SENIOR ASSOCIATE DEPUTY ATTORNEY GENERAL
- MARCY FORMAN, DIRECTOR, INVESTIGATIONS FOR IMMIGRATION AND CUSTOMS ENFORCEMENT
- ERIK CAMAYD-FREIXAS, PROFESSOR OF MODERN LANGUAGES, FLORIDA INTERNATIONAL UNIVERSITY
- DAVID LEOPOLD, DAVID WOLFE LEOPOLD & ASSOCIATES, REPRESENTING, AMERICAN IMMIGRATION LAWYERS ASSOCIATION
- ROBERT RIGG, ASSOCIATE PROFESSOR OF LAW, DIRECTOR OF THE CRIMINAL DEFENSE PROGRAM, DRAKE UNIVERSITY LAW SCHOOL