[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
BUILDING A SECURE COMMUNITY: HOW CAN DHS BETTER LEVERAGE STATE AND
LOCAL PARTNERSHIPS?
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HEARING
before the
SUBCOMMITTEE ON BORDER AND
MARITIME SECURITY
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JULY 10, 2012
__________
Serial No. 112-102
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Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED]
Available via the World Wide Web: http://www.gpo.gov/fdsys/
__________
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COMMITTEE ON HOMELAND SECURITY
Peter T. King, New York, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Daniel E. Lungren, California Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Michael T. McCaul, Texas Henry Cuellar, Texas
Gus M. Bilirakis, Florida Yvette D. Clarke, New York
Paul C. Broun, Georgia Laura Richardson, California
Candice S. Miller, Michigan Danny K. Davis, Illinois
Tim Walberg, Michigan Brian Higgins, New York
Chip Cravaack, Minnesota Cedric L. Richmond, Louisiana
Joe Walsh, Illinois Hansen Clarke, Michigan
Patrick Meehan, Pennsylvania William R. Keating, Massachusetts
Ben Quayle, Arizona Kathleen C. Hochul, New York
Scott Rigell, Virginia Janice Hahn, California
Billy Long, Missouri Ron Barber, Arizona
Jeff Duncan, South Carolina
Tom Marino, Pennsylvania
Blake Farenthold, Texas
Robert L. Turner, New York
Michael J. Russell, Staff Director/Chief Counsel
Kerry Ann Watkins, Senior Policy Director
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
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SUBCOMMITTEE ON BORDER AND MARITIME SECURITY
Candice S. Miller, Michigan, Chairwoman
Mike Rogers, Alabama Henry Cuellar, Texas
Michael T. McCaul, Texas Loretta Sanchez, California
Paul C. Broun, Georgia Sheila Jackson Lee, Texas
Ben Quayle, Arizona, Vice Chair Brian Higgins, New York
Scott Rigell, Virginia Hansen Clarke, Michigan
Jeff Duncan, South Carolina Bennie G. Thompson, Mississippi
Peter T. King, New York (Ex (Ex Officio)
Officio)
Paul Anstine, Staff Director
Diana Bergwin, Subcommittee Clerk
Alison Northrop, Minority Subcommittee Director
C O N T E N T S
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Page
Statements
The Honorable Candice S. Miller, a Representative in Congress
From the State of Michigan, and Chairwoman, Subcommittee on
Border and Maritime Security:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Henry Cuellar, a Representative in Congress From
the State of Texas, and Ranking Member, Subcommittee on Border
and Maritime Security.......................................... 4
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Oral Statement................................................. 6
Prepared Statement............................................. 7
Witness
Mr. John Morton, Director, U.S. Immigration and Customs
Enforcement, Department of Homeland Security
Oral Statement................................................. 8
Prepared Statement............................................. 9
BUILDING A SECURE COMMUNITY: HOW CAN DHS BETTER LEVERAGE STATE AND
LOCAL PARTNERSHIPS?
----------
Tuesday, July 10, 2012
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Border and Maritime Security,
Washington, DC.
The subcommittee met, pursuant to call, at 10:03 a.m., in
Room 311, Cannon House Office Building, Hon. Candice S. Miller
[Chairwoman of the subcommittee] presiding.
Present: Representatives Miller, Rogers, McCaul, Quayle,
Duncan, Cuellar, Jackson Lee, and Thompson (ex officio).
Mrs. Miller. The Committee on Homeland Security, our
Subcommittee on Border and Maritime Security will come to
order. The subcommittee is meeting today to examine how the
Department of Homeland Security can better leverage State and
local partnerships through programs like Secure Communities.
Our witness today is John Morton, who is the Director of
Immigration and Customs Enforcement.
I would just begin my opening statement by welcoming the
director. We are sincerely appreciative of his participation
today.
We also want to, of course, extend our condolences on the
recent shooting of ICE Agent Kelton Harrison, which certainly
demonstrates the risks that our agents, brave men and women on
the front lines, are facing each and every day. We certainly
pray for his speedy recovery as well.
Again, I want to thank the director and the men and women
of Immigration and Customs Enforcement, who do a magnificent
job.
I think all of us here on this subcommittee want to do
everything in our power to make sure that we give ICE the tools
and the resources and the support that they need to get the job
done.
Tangible border security requires that we take a layered
approach, and not just solely focus on the line in the sand
that separates the United States from Mexico. We have the long,
often-liquid border that we share with Canada, or of course the
thousands of miles of coastline. Because the truth is, despite
our best efforts and the billions we spend on personnel, on
infrastructure, technology, drug and human smugglers and others
will inevitably try to find a way through. Not only do
hardworking people come across the border in search of a better
life, but human smugglers and drug cartels and drug mules also
come into this country with less than pure motivations, and
often prey on the innocent.
I think it is important to note that when we discuss border
security, visa security cannot be overlooked. Estimates vary,
but the core truth is that many who enter the country illegally
walk in through the front door, and they never leave following
the expiration of their visas. We saw that with several of the
9/11 terrorists and even the recent case of the attempted
Capitol bomber who were all here on extended overstays, visa
overstays. Tracking down visa overstays and removing dangerous
criminals and recent border crossers is perhaps the most
critical enforcement layer when we think about what a secure
border and safer communities actually look like.
I would remind my colleagues as well that every single
person who crosses the border illegally, of course, has
committed a crime. We can't ignore the fact or sweep it under
the rug. Sending the message that unless you commit a serious
crime, that we are not going to bother with the efforts to
deport you, is I think a dangerous signal to be sending. It
threatens the safety of our country. Prioritization of limited
resources toward the most dangerous criminals certainly makes
sense. But ICE as well can't ignore low-level criminals because
of the very real potential that they will go on to commit more
serious crimes aside from entering the country illegally, which
I say is still a violation of the law.
When we think about what is the best use of our limited
resources, we should be fully cognizant of the fact that
although ICE is a large organization with more than 20,000
agents, the scope of the immigration and border security
problem is very large for them to tackle alone. We can
certainly debate the merits and wisdom of tough State
immigration laws, but ICE also needs to be cultivating and
leveraging partnerships with State and local governments who
are more often than not willing to share that burden. I am sure
the director is going to be talking about that today.
We have seen some delays in the roll-out of the Secure
Communities in Alabama because of the disagreement with the
tough State law. We have also seen a go-slow approach to the
roll-out in Illinois, in Cook County in particular, which
refuses to honor ICE detainers on even the most dangerous
criminals, putting citizens and the Nation at risk. I am sure
we will have some questions for the director about those two
incidents as well.
Immigration enforcement is certainly a Federal
responsibility, and the Congress has authorized as well State
and local law enforcement to provide support in certain
circumstances. Secure Communities and the 287(g) program and
others are critical components in the last line of defense.
Congress created Secure Communities in fiscal year 2008 as a
pilot program to establish the capability to identify all
criminal aliens or potential criminal aliens at the time of
arrest. In activated jurisdictions, which is now about 97
percent of the entire country, all of those arrested have their
fingerprints run against databases to determine if they are in
the country legally or not.
The program, now a permanent program, is in operation, as I
say, in all of these jurisdictions Nation-wide, with the goal
of having the program on-line Nation-wide by the end of this
year. Since the program was activated, it has helped lead to
the removal of more than 141,000 convicted criminals who were
unlawfully present in this country.
So I find it amazing, really, that there was so much
opposition to this program. Fully 94 percent of the aliens
deported by this very valuable program are either convicted
criminals or recent border crossers or visa overstays. This
begs a very simple question: How can you oppose a program with
those results unless you are not really vested in this Nation
securing our borders?
However, this is precisely the position several open-border
groups have advocated and formalized in the Secure Communities
task force report, ultimately resulting in ICE's adoption of a
policy to halt deportations until actual convictions for low-
level traffic violations.
My only concern with the Secure Communities program is that
we have heard some reports about aliens who have been convicted
of lower-level offenses who have generally been ignored with
little law enforcement action taken against that group.
Without taking enforcement actions against all criminal
aliens, programs such as Secure Communities may result in large
numbers of identified criminal aliens being released back into
society, which of course is an unacceptable outcome for our
communities. The purpose of today's hearing is to examine the
work that ICE is doing to leverage local and State resources.
Congress is eager and willing to facilitate cooperative
efforts to secure the border, to remove dangerous criminal
aliens from our streets and to help the Department of Homeland
Security secure our Nation's homeland. Again, that is the
purpose of this hearing.
[The statement of Chairwoman Miller follows:]
Statement of Chairwoman Candice S. Miller
First, I would like to thank the Director and the men and women of
Immigration and Customs Enforcement, who do a magnificent job, and I
think that all of us here on the subcommittee want to do everything in
our power to give ICE the tools, resources, and support they need to
get the job done.
The recent shooting of Special Agent Kelton Harrison while he was
conducting surveillance near McAllen, Texas demonstrates the risk that
our agents face on a daily basis. We certainly hope and pray for his
speedy recovery.
Tangible border security requires we take a layered approach and
should not focus solely on the line in the sand that separates the
United States and Mexico, the long, often liquid, border we share with
Canada, or the thousands of miles of coastline.
Because if we are honest, the truth is, despite our best efforts,
and the billions spent on personnel, infrastructure, and technology,
drug and human smugglers and others will inevitably find a way get
through.
Not only do hard-working people come across the border in search of
a better life, but human smugglers, drug cartels, and drug mules also
come to this country with less-than-pure motivations, and often prey on
the innocent.
I think it is important to note that when we discuss border
security, visa security cannot be overlooked. Estimates vary, but the
core truth is that many who enter the country illegally walk in through
the front door and never leave following the expiration of their visa,
as we saw with several of the 9/11 hijackers and even the recent case
of the attempted Capitol bomber.
In my mind, tracking down visa overstays, removing dangerous
criminals, and recent border-crossers is perhaps the most critical
enforcement layer as we think about what a secure border and safer
communities look like.
I would like to remind my colleagues that every single person who
crosses the border illegally has committed a crime, and we cannot
ignore that fact or sweep it under the rug. Sending the message that
unless you commit serious crimes, we will not bother with the effort to
deport you, is dangerous and threatens the safety of our country.
Prioritization of limited resources toward the most dangerous
criminals makes sense, but ICE should not ignore low-level criminals
because of the very real potential that they will go on to commit more
serious crimes, aside from entering the country illegally, which is
still a violation of the law.
As we think about the best use of our limited resources, we should
be fully cognizant of the fact that although ICE is a large
organization, with more than 20,000 agents, the scope of the
immigration and border security problem is too large to tackle alone.
We can certainly debate the merits and wisdom of tough State
immigration laws, but ICE should be cultivating, and leveraging,
partnerships with State and local governments, who are more often than
not willing to share the burden.
Instead, we've seen delays with the roll-out of Secure Communities
in Alabama, because of this administration's disagreement with a tough
State law, and a go-slow approach to the roll-out in Illinois. In fact,
Cook County refuses to honor ICE detainers on even the most dangerous
criminals--putting their citizens and this Nation at risk.
However, whereas the administration has taken legal action against
certain States such as Arizona, it refuses to confront Cook County--the
President's hometown.
On the surface, it appears ICE and this administration want to
tackle the interior enforcement issue largely without the help of State
and locals, or at least only on their terms--a tragic error of judgment
in my view. While immigration enforcement is certainly a Federal
responsibility, Congress has authorized State and local law enforcement
to provide support in certain circumstances.
Secure Communities, the 287(g) program and others are critical
components of what I call the last line of defense as we work to secure
the border.
Congress created Secure Communities in fiscal year 2008 as a pilot
program to establish the capability to identify all criminal aliens or
potential criminal aliens at the time of arrest. In activated
jurisdictions, all those arrested have their fingerprints run against
databases to determine if they are in the country legally.
The program, now permanent, is operational in 97% of jurisdictions
Nation-wide, with the goal of having the program on-line Nation-wide by
the end of this year. Since the program was activated, it has helped
lead to the removal of more than 141,000 convicted criminals who were
unlawfully present in this country, so it is really beyond
comprehension why there is so much opposition to this program.
Fully 94% of the aliens deported by this valuable program are
either convicted criminals or recent border-crossers, or visa
overstayers.
This begs a simple question: How can you oppose a program with
those results unless you're not really vested in this Nation securing
its borders?
However, this is precisely the position several open-borders groups
have advocated and formalized in the Secure Communities Task Force
report, ultimately resulting in ICE's adoption of a policy to halt
deportations until actual convictions for lower-level traffic
violations.
My only concern with the Secure Communities program is that we have
heard troubling reports about aliens who have been convicted of lower-
level offenses have generally been ignored, with little enforcement
action taken against that group.
Without taking enforcement actions against all criminal aliens,
programs such as Secure Communities may result in large numbers of
identified criminal aliens being released back into society--an
unacceptable outcome for our communities.
The purpose of today's hearing is to examine the work that ICE is
doing to leverage local and State resources.
Congress is eager and willing to facilitate cooperative efforts to
secure the border, remove dangerous criminal aliens from our streets,
and help DHS secure the Nation's homeland.
Mrs. Miller. The Chairwoman now recognizes the Ranking
Minority Member of the subcommittee, the gentleman from Texas,
Mr. Cuellar, for his opening statement.
Mr. Cuellar. Thank you, Madam Chairwoman.
Thank you for holding this hearing today.
I would like to thank also Director Morton for joining us
today, and I look forward to his testimony.
Before we begin, I would like to express my condolences to
the family of the Border Patrol agent, Leopoldo Cavazos, Jr.,
who died in the line of duty on July 6 after an accident near
Fort Hancock in west Texas.
I would also like to wish a quick recovery to HSI Special
Agent Kelton Harrison, who was shot in the line of duty near
Hargill, Texas.
I believe, Director, you are heading over there to go visit
the family and him also. I think he was shot there last week.
Again, thank you for showing there in my county, one of the
counties that I represent. These terrible incidents are a stark
reminder that the men and women at DHS law enforcement put
their lives on the line every day to make our country more
secure. We greatly appreciate their service and sacrifice. The
purpose of today's hearing is to examine the status of ICE
Secure Communities program, along with the agency's plan for
the future of the program. Removing criminal aliens from the
United States has been a Congressional priority since 1986,
with the passage of the Immigration Reform Control Act.
The Department of Homeland Security and its predecessor
agency have operated programs targeting criminal aliens for
removal since 1988. Today, under the Secure Communities
program, when participating law enforcement agencies submit the
fingerprints of arrestees to the FBI for criminal background
checks, the fingerprints are also now automatically sent to DHS
for ICE to check against them for DHS databases.
I know when I was traveling in my Congressional district,
because I wanted to have all of my Congressional district, I
travel with ICE, and we told the folks that it was just a very
simple thing. When they put the fingerprint, you used to just
go check the criminal background. But once in and in jail and
they give their fingerprint, now they send off for the
immigration status. I think it is just a very common-sense
approach. Of course, you all are in all 254 counties in Texas
and all across I think there is a couple States that we want to
talk about in a few minutes.
The ICE reports show that through March 31, 2012, more than
135,000 immigrants convicted of crimes, including more than
49,000 convicted of aggravated felony offenses, like murder and
rape, were removed from the United States after identification
through Secure Communities. My brother, who is a border
sheriff, was giving an example of they stopped somebody, they
had somebody in jail, and it turned out that he was there for
murder in another State. So Secure Communities does work and it
does help the local border law enforcement.
Given ICE's relative limited enforcement resources compared
to the number of individuals unlawfully presented in the United
States, prioritizing criminals, and particularly the serious
criminals, for removal keeps our communities safer and is the
best use of taxpayers' dollars.
The Secure Communities program has not been without
controversy. I do understand that. I am pleased to say that
ICE, under Director Morton's leadership, has taken steps to
make enhancements to the program. For example, I was in
Houston. I was there with Sheriff Garcia. He was telling me
about the task force that they put together to make sure that
ICE was working to improve its communication with State and
local jurisdictions and Secure Communities not only there in
Houston and Harris County, with Sheriff Garcia, but of course
in other parts. We want to thank you to make sure that we
minimize concerns over the possibility of racial profiling in
the program. I hope to hear from Director Morton about ICE
progress in this particular effort.
I also hope to hear about how he intends to ensure that the
program meets its stated mission of focusing on removing
serious criminal aliens from this country. As a Member of
Congress, we always want to make sure that the agencies
understand: What is your core mission? What is your core
mission? And make sure you accomplish those objectives.
As a Member representing a border community, I know how
important programs like Secure Communities are in addressing
the issue of illegal immigration. Given its importance, I hope
we can have a thoughtful, focused discussion on Secure
Communities today.
I look forward to having a productive dialogue with you,
Director Morton.
Again, I want to thank the Chairwoman and the Ranking
Member of the full committee, Mr. Thompson, for all the good
work that they are doing, along with the Members.
Thank you, and I yield back the balance of my time.
Mrs. Miller. The Chairwoman now recognizes the Ranking
Member of the full committee, the gentleman from Mississippi,
Mr. Thompson, for his statement.
Mr. Thompson. Thank you very much, Madam Chairwoman.
Welcome, Director Morton. Good to see you again.
Let me start by saying I strongly support the
administration's decision to identify and remove aliens who may
pose a threat to National security or public safety. However, I
believe it is imperative that programs like Secure Communities
be focused first and foremost on removing serious criminal
offenders, given ICE's limited enforcement resources. The
program must be administered to guard against racial profiling
and protect community-police relations. In its September 2011
report, the Homeland Security Advisory Council Task Force on
Secure Communities made important recommendations to improve
the program. I wholeheartedly agree with its recommendations
that ICE develop good working relationships with participating
States, cities, and communities, implement mechanisms to ensure
the program prioritizes those who pose a risk to public safety
or National security, and most importantly, strengthen
mechanisms to prevent civil rights and civil liberties
violations.
In a response to the report, ICE has made plans to
implement several changes to the Secure Communities program to
address the task force's recommendations. I look forward to
hearing from Director Morton today about the status of these
efforts and what additional changes we should expect.
Unfortunately, some of my colleagues on the other side of
the aisle continue to describe ICE's practical, risk-based
approach to the removal of undocumented aliens, whether they be
brought to ICE through Secure Communities or another program,
as administrative amnesty.
As I have said before, unless and until Congress
appropriates sufficient funds for ICE to apprehend and remove
every undocumented alien in the country, we should support the
agency's efforts to focus its limited resources on removing
those undocumented aliens who pose the greatest threat to our
Nation. It is also worth reiterating that under the current
administration, ICE has removed more criminal aliens and more
aliens total than under the Bush administration or any other
prior administration, Democrat or Republican.
With that, Madam Chairwoman, I would also again like to
recognize Director Morton for the job that he is doing. I look
forward to hearing from him and am certain he will provide the
subcommittee with valuable insights into the complex issues of
immigration enforcement.
I yield back.
[The statement of Ranking Member Thompson follows:]
Statement of Ranking Member Bennie G. Thompson
Let me start by saying I strongly support the administration's
decision to identify and remove aliens who may pose a threat to
National security or public safety. However, I believe it is imperative
that programs like Secure Communities be focused, first and foremost,
on removing serious criminal offenders, given ICE's limited enforcement
resources.
The program must be administered to guard against racial profiling
and protect community-police relations. In its September 2011 report,
the Homeland Security Advisory Council (HSAC) Task Force on Secure
Communities made important recommendations to improve the program.
I wholeheartedly agree with its recommendations that ICE develop
good working relationships with participating States, cities, and
communities; implement mechanisms to ensure the program prioritizes
those who pose a risk to public safety or National security; and, most
importantly, strengthen mechanisms to prevent civil rights and civil
liberties violations.
In its response to the report, ICE has made or plans to implement
several changes to the Secure Communities program to address the task
force's recommendations.
I look forward to hearing from Director Morton today about the
status of these efforts and what additional changes we should expect.
Unfortunately, some of my colleagues on the other side of the aisle
continue to describe ICE's practical, risk-based approach to the
removal of undocumented aliens, whether they be brought to ICE through
Secure Communities or another program, as ``administrative amnesty.''
As I have said before, unless and until Congress appropriates
sufficient funds for ICE to apprehend and remove every undocumented
alien in the country, we should support the agency's efforts to focus
its limited resources on removing those undocumented aliens who pose
the greatest threat to our Nation.
It is also worth reiterating that under the current administration,
ICE has removed more criminal aliens, and more aliens total, than under
the Bush administration or any other prior administration, Democratic
or Republican.
With that, Madam Chairwoman, I would like to welcome Director
Morton. I look forward to hearing from him and am certain he will
provide the Members of this subcommittee valuable insight into the
complex issue of immigration enforcement.
Mrs. Miller. Other Members of the committee are reminded
that opening statements might be submitted for the record.
Again, our sole witness today is Mr. John Morton, who is
the director of Immigration and Customs Enforcement, ICE, which
is the principal investigative arm of the Department of
Homeland Security. It is the second-largest investigative
agency in the Federal Government. The agency's primary mission
is to promote Homeland Security and public safety through the
criminal and civil enforcement of Federal laws governing border
patrol, customs, trade, and immigration. During his tenure at
ICE, Director Morton has strengthened ICE's investigative
efforts, with a particular emphasis on border crimes, export
controls, intellectual property enforcement, and child
exploitation.
The Chairwoman now recognizes Director Morton for his
testimony.
Again, we welcome you to the committee, sir.
STATEMENT OF JOHN MORTON, DIRECTOR, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY
Mr. Morton. Thank you so much, Madam Chairwoman. Mr.
Cuellar, Mr. Thompson, Mr. Duncan, thank you for inviting me.
It is my honor and pleasure to appear before you today to talk
about Secure Communities and our other related initiatives. Let
me start, Madam Chairwoman, by saying that I think that Secure
Communities is an excellent program. I think it represents one
of the most important efforts by the Congress to focus ICE's
enforcement on criminal offenders.
As you noted, Secure Communities got its start in 2008 in
the Appropriations Act when Congress directed ICE to improve
its efforts to identify convicted criminal aliens held in the
Nation's jails for removal from the United States. Congress
instructed ICE to identify all convicted criminals and to
prioritize their identification and removal based on the
severity of the aliens' crimes. Congress has since reiterated
that direction in every single one of our subsequent
appropriations and has consistently focused our detention
resources accordingly.
Secure Communities was launched in Harris County, Texas, in
October 2008, and we have come a long, long way since that
time. Secure Communities is now deployed in every State of the
Union and fully deployed in every State, save Alabama and
Illinois. Put another way, Secure Communities has been deployed
to 3,074 of the 3,181 jurisdictions in the United States, a
remarkable achievement in just under 4 years. I am confident we
will complete full deployment in the near future, starting with
the remaining jurisdictions in Alabama when the 11th Circuit
rules on the pending litigation over Alabama's immigration law.
For the first time in our Nation's history, we can
uniformly identify individuals who are here unlawfully and are
subsequently arrested for a crime provided that their
fingerprints are on file with the FBI and DHS. This fingerprint
sharing between the FBI and DHS, itself mandated by Congress in
2002, now permits ICE to identify large numbers of criminal
offenders subject to removal, as well as individuals who have
been previously removed or have an outstanding final order of
removal.
The results have been significant, both in terms of
immigration enforcement and public safety. ICE has removed
58,297 individuals through Secure Communities so far this year
alone, and over 140,000 criminals since the inception of the
program, as the Chairwoman notes. This year, 75 percent of the
individuals removed had a criminal conviction. Of the remaining
quarter, the overwhelming majority were either absconders, that
is immigration fugitives, or had illegally reentered the
country after having previously been deported one or more
times.
Contrary to what critics allege, the single largest
category of individuals removed through Secure Communities are
aggravated felons, 17,000 to date this year alone.
Madam Chairwoman, that is just good law enforcement.
As the program has expanded, we have also taken care to
address concerns raised in certain jurisdictions, as Mr.
Cuellar and Mr. Thompson note. In particular, we have made some
important improvements, including considering minor traffic
offenses only upon conviction, creating a 24-hour hotline for
anyone who believes they are a U.S. citizen or otherwise have
been improperly served an immigration detainer, ensuring that
victims and witnesses of crimes are not inadvertently placed in
removal proceedings, and making clear that our detainers are
valid for no more than 48 hours, and developing a strong
oversight program in coordination with the Department of
Homeland Security's Office of Civil Rights and Civil Liberties.
With regard to the 287(g) program, we have 68 active
agreements. That number has not changed much over the years.
Forty are in a jail setting; 20 involve task forces; and 8
involve both. The jail model continues to be the most
productive by far, accounting for a little over 9,000 of the
9,500 287(g) removals to date this year. The task force model
has proved much less productive, with just 361 removals to date
Nation-wide. We are phasing out most such agreements as a
result. For example, of the 7 task force agreements we just
ended in Arizona, 6 of the 7 had resulted in no removals of any
kind for the last 2 years.
With regard to overall enforcement, I think we will end the
fiscal year with similar results to last year, that is about
400,000 removals. Like last year, these removals will focus
heavily on our enforcement priorities. Over half will have
criminal convictions, and the vast majority of the rest will be
recent border violators, illegal reentrants, and those who have
ignored a final order.
Within our criminal removals, I think we will see further
emphasis on Level 1 offenders. Indeed, I am cautiously
optimistic that this year we will remove the highest number of
aggravated felons in our history.
One final note, Madam Chairwoman. I want to thank the
committee for its thoughtful, bipartisan approach. I have
always found the committee's oversight of ICE to have been firm
but fair. The same was true when Mr. Cuellar was Chairman
himself. I am happy to answer any questions that you or the
committee may have.
[The statement of Mr. Morton follows:]
Prepared Statement of John Morton
July 10, 2012
introduction
Chairman Miller, Ranking Member Cuellar, and distinguished Members
of the subcommittee: Thank you for the opportunity to address you today
regarding U.S. Immigration and Customs Enforcement's (ICE) Secure
Communities strategy which improves and modernizes the identification
and removal of criminal aliens and other high-priority aliens from the
United States. ICE is the principal investigative arm of the U.S.
Department of Homeland Security (DHS), and our primary mission is to
promote homeland security and public safety through the criminal and
civil enforcement of Federal laws governing border control, customs,
trade, and immigration. Secure Communities is critical to our success
in targeting and removing convicted criminals, those who pose a threat
to public safety, and egregious immigration law violators.
The reality of finite resources requires law enforcement--at all
levels--to use resources strategically and wisely to accomplish their
mission. Over the past 3\1/2\ years, ICE has established clear
priorities that focus our enforcement resources on aliens that pose a
threat to public safety or National security, repeatedly violate our
immigration laws or recently crossed our borders. Secure Communities
utilizes the interoperability between the DHS Automated Biometric
Identification System (IDENT) and the Federal Bureau of Investigations
(FBI) Integrated Automated Fingerprint Identification System (IAFIS),
as a tool to focus the agency's resources on identifying and
apprehending convicted criminals and other high-priority aliens.
At the end of fiscal year 2009, Secure Communities' use of this
Federal biometric information-sharing capability was deployed to 88
jurisdictions across the Nation. That year, only 35 percent of ICE's
removals were of criminal aliens. At the end of fiscal year 2011,
Secure Communities deployed this capability to 1,595 jurisdictions. In
fiscal year 2011, 55 percent of all of ICE's removals were of criminal
aliens--the highest percentage of criminal aliens removed in decades.
These successes are a direct result of Secure Communities' expansion of
this Federal biometric information-sharing capability and highlight the
effectiveness ICE's overall effort to establish clear priorities and
focus agency resources.
secure communities
Overview
While the fundamentals of Secure Communities remain sound, ICE is
mindful of the concerns raised by some, including State and local law
enforcement officials, and is committed to continuing to make
operational adjustments to ensure that Secure Communities aligns with
our operational priorities. Unfortunately, ICE's initial public
statements often caused confusion about how Secure Communities works
and who is required to participate. Given that there may remain some
confusion surrounding Secure Communities, I want to take a moment to
clarify what it is, and more importantly what it is not. Secure
Communities focuses on improving and modernizing the identification and
removal of criminal aliens and other high-priority aliens from the
United States. The cornerstone of Secure Communities relies on the
sharing, between the U.S. Department of Justice and DHS, of
fingerprints submitted to the FBI by State and local law enforcement
agencies for criminal justice purposes. The Federal biometric
information sharing that Secure Communities uses typically begins when
an individual is arrested and booked on a State or local criminal
charges and his or her fingerprints are digitally scanned and
transmitted to a State Identification Bureau (SIB). In turn, the SIB
submits the fingerprints to the FBI Criminal Justice Information
Services Division (CJIS) to check against IAFIS for criminal data.
When fingerprints are submitted to the FBI, they are shared with
DHS. If submitted fingerprints match a record in the DHS US-VISIT
database, which contains biometrics on individuals who have had prior
encounters with immigration officials, ICE Law Enforcement Support
Center (LESC) personnel will then query additional DHS databases to
determine if the person may be present in violation of U.S. immigration
law. LESC personnel also query criminal history databases to compile a
more complete criminal history record of current and prior criminal
offenses for ICE enforcement personnel to review.
The findings are sent electronically to the local ICE Field Office
or a Secure Communities Interoperability Response Center where a
determination is made whether to initiate an immigration enforcement
action in line with ICE's enforcement priorities. This determination is
based on the subject's criminal and immigration history, available ICE
resources in the location, and other mitigating circumstances that ICE
agents and officers consider when determining whether the individual is
an appropriate candidate for prosecutorial discretion. If feasible,
based upon the arresting agency's technical capabilities and upon the
request of the State, the findings are also made available to the SIB
and the law enforcement agency that submitted the fingerprint to aid in
clarifying the identity of the subject. Neither the State nor the
arresting law enforcement agency, in the absence of formal 287(g)-
delegated authority from an agreement with DHS, is authorized to take
immigration enforcement action against the person arrested. This
authority remains solely with DHS.
Secure Communities' use of this information-sharing capability does
not in any way authorize a State or local agency to enforce immigration
laws. The determination to make an arrest is at the sole discretion of
the State and local law enforcement officer, acting under the criminal
law authority of the jurisdiction in which they operate. Not every
person arrested will be subject to a Secure Communities' IDENT/IAFIS
interoperability query. Only when State or local law or policy
prescribes that the fingerprints be taken from an individual in custody
for a criminal charge and then be submitted to the FBI's IAFIS database
will that individual's fingerprints be checked against DHS's
immigration databases. Even when an individual's fingerprints are
submitted, ICE may choose not to take action if the individual does not
meet ICE enforcement priorities. While State and local law enforcement
officials decide whom to arrest and whether to submit fingerprints to
the FBI, when there is a biometric match through Secure Communities'
use of this information-sharing capability an ICE official reviews both
the criminal record and the immigration history and then determines if
an immigration enforcement action is warranted in light of ICE's
enforcement priorities.
Only those fingerprints submitted to the FBI in relation to a
criminal charge are subject to Secure Communities' use of IDENT/IAFIS
interoperability. By comparison, prints submitted to the FBI as part of
a background check for employment or other non-criminal purposes are
not subject to Secure Communities' use of IDENT/IAFIS interoperability.
Improvements to Secure Communities
In 2011, as part of the administration's continued commitment to
smart, effective immigration enforcement, ICE announced key
improvements to IDENT/IAFIS interoperability through Secure
Communities, including:
Advisory Committee Input.--In light of the confusion about how
Secure Communities works and who is required to participate that had
been created by certain ICE statements, a Task Force of the Homeland
Security Advisory Council examined ways to improve Secure Communities,
including providing recommendations on how to best focus on individuals
who pose a true threat to public safety or National security and how to
address some of the concerns that ``relate to [its] impact on community
policing and the possibility of racial profiling.''
This Task Force issued a report of Findings and Recommendations
(Report). ICE appreciates the Task Force's diligent work in preparing
their Report, which ICE took seriously. In response to it, ICE then
conducted a detailed review of the Report, and in April 2012 issued its
response highlighting key improvements to Secure Communities. In this
response, ICE adopted a new policy regarding individuals arrested for
minor traffic offenses. Under this policy, ICE will only consider
issuing detainers for individuals arrested solely for minor traffic
offenses who have not been previously convicted of other crimes and do
not fall within any other ICE priority category, upon conviction for
the minor criminal traffic offense. This new policy will help focus ICE
resources on those who pose a threat to public safety or National
security, as well as repeat or egregious immigration law violators and
recent border-crossers. It is also designed to create a disincentive
for local law enforcement from making pretextual arrests of traffic
violators.
Issuance of Prosecutorial Discretion Guidance.--On June 17, 2011, I
issued a memorandum providing guidance for ICE law enforcement
personnel and attorneys regarding their authority to exercise
discretion when appropriate. This long-standing authority is designed
to help ICE better focus on meeting the priorities of the agency and to
use ICE's enforcement resources to target criminals and those that put
public safety at risk. The memorandum applies fully to any enforcement
action taken with respect to individuals identified through Secure
Communities' use of IDENT/IAFIS interoperability.
The memorandum makes clear that the favorable exercise of
discretion is not appropriate in cases involving threats to public
safety, National security, and other agency priorities. Moreover, to
ensure that this agency guidance is implemented consistently, ICE
developed an intensive practical training module for its attorneys and
field leadership on the proper exercise of prosecutorial discretion. I
have also personally visited many of our field offices to speak with
both ICE officers and attorneys about the guidance memo and its proper
implementation. These proactive measures reflect our firm commitment to
effectively prioritizing our immigration cases.
Prosecutorial Discretion: Certain Victims, Witnesses, and
Plaintiffs.--At the direction of the Secretary of Homeland Security,
ICE, in consultation with the DHS Office for Civil Rights and Civil
Liberties (CRCL), has developed a new policy designed specifically to
protect victims of domestic violence and other crimes and to ensure
these crimes continue to be reported and prosecuted. This policy
directs ICE officers to exercise appropriate discretion to ensure
victims and witnesses to crimes are afforded the legal protections for
which they may be eligible. ICE is also working to develop additional
tools, such as a risk classification assessment tool, to be used during
intake into detention, to help identify people who may be victims,
witnesses, or members of a vulnerable class so that officers can
exercise discretion as appropriate. The memorandum also applies fully
to any enforcement action taken with respect to individuals identified
through Secure Communities' use of IDENT/IAFIS interoperability.
Outreach to States.--ICE and CRCL have developed a series of
briefing and awareness materials for State and local law enforcement
agencies to provide clear information about how Secure Communities
works and how it relates to laws governing civil rights. The briefings
take the form of a series of videos and supplemental materials, which
include input from law enforcement and community groups, to be shown to
local law enforcement during daily roll-call and during other
trainings. Three of the eight planned modules--those on Secure
Communities, immigration detainers, and consular notification--have
been released and can be viewed on the ICE website. The remaining
modules are expected to roll out through the end of 2012.
Issuance of a Revised Detainer Policy.--ICE has revised the
detainer form that ICE sends to local jurisdictions to emphasize the
long-standing guidance that upon receipt of a detainer subject to which
an alien is to be held, State and local authorities are not to detain
an individual for more than 48 hours beyond the time when the
individual would have otherwise been released from State or local
custody, excluding weekends and holidays. The form also requests that
local law enforcement officials provide arrestees with a copy, which
includes information in several languages on how to file a complaint if
an individual believes their civil rights have been violated or that
they have been the victim of a crime, or that they are able to make a
claim of U.S. citizenship, which can be directed to a new 24-hour
hotline answered by the LESC.
Complaints.--ICE takes seriously complaints raised about civil
rights violations related to Secure Communities. As a part of our
commitment to ensure that Secure Communities appropriately fulfills its
mission, ICE has worked with CRCL to publicly explain, through a series
of town halls and on both ICE and CRCL's websites, the protocol for
addressing complaints raised about civil rights violations related to
Secure Communities, including complaints regarding State and local law
enforcement actions. CRCL has opened investigations under that
framework. In addition, ICE's Public Advocate, who works directly for
the head of ICE's Enforcement and Removal Operations (ERO), is
available to assist individuals and community stakeholders in resolving
complaints and concerns with agency policies and operations, including
concerns with Secure Communities.
Statistical Review.--ICE and CRCL have created an on-going
quarterly statistical review of data generated through Secure
Communities' use of IDENT/IAFIS interoperability. This review examines
data for each jurisdiction where Secure Communities' use of IDENT/IAFIS
interoperability is deployed to identify any indications of anomalous
arrest patterns that may indicate bias. Statistical outliers in local
jurisdictions will be subject to an in-depth analysis, and DHS and ICE
will take appropriate steps to resolve any problems. ICE and CRCL have
posted both a concise explanation of this project and a technical paper
on the data and statistical calculations being employed on the ICE
website, http://www.ice.gov/secure_communi-
ties/. The page also contains links to the various initiatives
associated with Secure Communities.
Enhancing the Effectiveness of Secure Communities
On March 27, 2012, the DHS Office of the Inspector General (OIG)
issued two audit reports on Secure Communities: (1) ``Effectiveness of
U.S. Immigration and Customs Enforcement's Secure Communities'' and (2)
``Communication Regarding Participation in Secure Communities.''
Overall, the OIG determined that Secure Communities was effective in
identifying criminal aliens and, in most cases, ICE officers initiated
enforcement actions according to agency enforcement policy. OIG also
found that ICE did not intentionally mislead the public or State and
local jurisdictions during implementation of Secure Communities and its
use of IDENT/IAFIS interoperability.
In the first report, on effectiveness, OIG determined that ICE
expanded its ability to identify criminal aliens in geographical areas
not covered by its other programs. In addition, the report found that
ICE was able to identify criminal aliens earlier in the justice
process, some of whom it would not have identified under other
programs. Through use of existing technical capabilities, Secure
Communities' use of IDENT/IAFIS interoperability was implemented at
little or no additional cost to local law enforcement jurisdictions. In
that report, OIG made two recommendations to improve ICE's overall
management of Secure Communities. To improve the transparency and
thoroughness of its processes under Secure Communities, OIG noted that
ICE needs to: (1) Eliminate the duplication of research; and (2) ensure
that officers fully document their actions. ICE concurred with both
recommendations and is taking action to implement them.
In the second OIG report, regarding communications, OIG indicated
that it did not find evidence that ICE intentionally misled the public
or State and local jurisdictions during implementation of Secure
Communities. OIG did note that ICE did not clearly communicate to
stakeholders the intent of Secure Communities and their expected roles
and made recommendations to ensure that expected participation is
clearly communicated for Secure Communities and future ICE programs and
initiatives.
In response to these recommendations, ICE has also addressed the
roles and responsibilities of ICE senior leadership and coordination
with the Department regarding future immigration enforcement program
development and implementation. Additionally, ICE has taken steps to
respond to criticism about Secure Communities implementation, and to
understand how the lessons learned about the importance of clear,
effective communications about enforcement programs, goals, and
objectives can guide future immigration enforcement program development
and implementation.
conclusion
Secure Communities serves a critical role in ICE's overall effort
to focus agency resources on criminal aliens, repeat immigration
violators, and recent border crossers. I again thank the committee for
its continued support and the opportunity to share with you the good
work of U.S. Immigration and Customs Enforcement. I am proud of the
work our ICE teams do each and every day all around the world to help
strengthen and secure our homeland and make our communities safer. On
behalf of the men and women of ICE, I thank you for the opportunity to
testify on these efforts. I would now welcome any questions you may
have.
Mrs. Miller. Thank you very much for your testimony,
Director.
I guess I would start off talking about Secure Communities.
As you mentioned, it has been a successful program. It was one
of the reasons we wanted to call this hearing today, to do our
Congressional oversight and evaluate the program, how it rolled
out, where are some of the hiccups we have encountered along
the way, and really I think highlight the successful part of
this program.
Everything that we are doing in regards to border security
is not as successful as Secure Communities. So I think it is
good for us to amplify this message a bit about what a
successful program it has been. I do think that a critical
component in the makeup of why it has been successful is the
engagement, if you will, the force multiplier that you are
finding by utilizing the State and local law enforcement. One
thing we always talk about on this committee, a very critical
element of the 9/11 Commission's report that we never want to
forget is where they said we have to go from the need-to-know
to the need-to-share, from the need-to-know information to the
need-to-share information, amongst all the various agencies. I
think that is, again, a critical component of our layered
approach to border security and law enforcement, et cetera.
So, as was mentioned, you have pretty good buy-in,
excellent buy-in I would say, across the entire Nation. I know
in my district, and the Ranking Member and I were just talking
about in his district, our local sheriffs are very enthusiastic
about this program. It allows for them to utilize technology,
sharing the fingerprints and the database, to know that if they
pulled somebody over for a routine traffic stop and they are in
a database as either a visa overstay or an illegal in the
country, et cetera, that they are able then to contact your
agents and look for deportation.
However, we have the situation in Alabama, which sounds now
like it is going to resolve itself hopefully in the fall here.
I guess sort of the big hold-out that we see, although there
are some municipalities, small ones in California, the big
hold-out is probably one of the largest counties in the Nation,
Cook County, Illinois, which has essentially become a sanctuary
city. Yet they are still, the community is still looking for
Federal dollars in grants or what have you to pay for detainees
that they have in their jails, but they don't want to
participate in the Secure Communities. Whether they are
releasing these criminal aliens or what have you, I guess I am
looking for some response, if you will, both just to clarify
the Alabama situation, but particularly with the Cook County
situation.
Mr. Morton. Madam Chairwoman, first with regard to Alabama,
I think that will be resolved. I think we will see full
deployment in Mr. Rogers' home State. That was excellent timing
there. So I expect the 11th Circuit to rule fairly shortly. I
think the Supreme Court's decision in Arizona will lead us to a
place where the 11th Circuit will rule, and we will be able to
fully deploy in the remaining counties of Alabama over the
Autumn.
With regard to Illinois, as you note, it is a little more
of a difficult situation there. Cook County, which is the
largest county and has one of the largest detention systems in
the country, has adopted an ordinance that essentially
prohibits all cooperation with ICE, even with regard to very
serious and violent offenders. I have written a number of
public letters to the county. I am very much opposed to their
approach. I think it is the wrong way to approach public safety
in Cook County. I am quite confident that their approach is
ultimately going to lead to additional crimes in Cook County
that would have been prevented had we been able to enforce the
law as the law is presently written.
Just to give you some sense of it, in very large
jurisdictions in the United States, the rate of recidivism for
criminal offenders can be as high as 50 percent or more. When
ICE can come in and remove offenders from a given community so
that they can't re-offend, well, guess what, we take that
recidivism rate to zero. So, for example, if you have 100
criminal offenders and we are able to root them, that is 50
crimes that will not happen over the next 3 years as a result
of our enforcement efforts. That is ultimately the power of
Secure Communities. It is a direct way to support public safety
in a very thoughtful manner.
What are we trying to do to resolve the situation in
Illinois? We have been working with the county to see if there
isn't some solution. I won't sugarcoat it. I don't think that
that approach is going to work in full. We are going to need
the help of others. We have been exploring, as the Secretary
has said, our options under Federal law with the Department of
Justice. We will see where that goes. Then with regard to the
annual request by Cook County to be reimbursed for the costs of
detaining individuals who are here unlawfully and have
committed crimes, obviously I find that position to be
completely inconsistent with then not allowing us access to and
removing those very same individuals, and we will be taking a
very hard look at their SCAAP request. That is the part of the
law that allows the Federal Government to reimburse for those
costs this year. My own position is going to be that if we do
not have access to those individuals, we will not be able to
verify their request for the year.
Mrs. Miller. Well, I can't tell you how delighted I am to
hear you make that very candid assessment of what is happening
in Cook County, and as you say, exploring your options in
regards to financial assistance from the Federal Government. We
do want to work with Cook County, but there is reciprocity in
all relationships, and they need to work with us as well. They
are not immune to Federal law. If they are not going to assist
us in removing not only criminal aliens, but those that might
go on to commit a terrorist attack or what have you because
they want to have their city become a sanctuary, the Federal
Government cannot stand by idly and allow that to happen. It is
absolutely the wrong message to be sending. So I am very
appreciative of what you are saying, really exploring your
options. Is there anything further that this subcommittee or
the Congress can assist you with in that particular instance?
If so, we are certainly all ears, because we do need to resolve
that in the correct way. I think Cook County is going to have
to recognize that the Federal Government is very serious about
Secure Communities. We can't have just one hold-out in the
country for such a thing or they really will become a magnet
for all kinds of situations there.
Mr. Morton. I would say that we are going to give it a very
good effort to try to resolve the situation directly with Cook
County and with Illinois and with the Department of Justice. If
we can't do that, I think we would be happy to come back and
explore further options with the committee.
From our perspective, Federal law is very clear on the
question of cooperation with Federal authorities in
immigration. We do think that the ordinance is inconsistent
with the terms of Federal law. Ultimately, I think we share the
same aims, I would assume, with the authorities in Cook County,
and that is public safety for the people that live there. It
just does not make sense to release to the streets serious
criminal offenders who shouldn't be in the country in the first
place given the rate of recidivism.
Mrs. Miller. I appreciate that. I guess just one other
question I have. You were mentioning about the amount of, the
percentage of those through the Secure Communities program that
have been previously removed that are picked up again. I am
looking at my notes here. I was trying to make some notes while
you were talking, 16 percent or something that you are picking
up had already been previously removed, which I think begs the
question about some of the effectiveness that we have along
border security. Do you have any comment? Are you surprised by
that number? Or what are your thoughts on that?
Mr. Morton. I think it highlights--so some of the criticism
of Secure Communities has been that it identifies and removes
certain individuals prior to conviction. The answer is, it does
do that, but it does that in circumstances that, frankly, make
a lot of sense from an enforcement perspective. When you look
at, well: Who are these people that we are identifying removing
prior to conviction? They are, in the overwhelming majority of
cases, people that have already been removed from the country
and have come back again unlawfully, or they are people who
have already been through the immigration system, have a final
order and ignored that final order. Remember, the only way you
get identified by Secure Communities is to have been arrested
in the first place for a crime. So we are talking about people
who have come into the criminal justice system and have either
a final order of removal or have been previously removed.
Congress has been very clear with regard to both of those
categories of people that their removal is a priority. So, of
course, we focus on those two categories of people, even if
they don't have a criminal conviction. It just makes sense.
Otherwise, we would be releasing to the streets somebody we had
deported before and has come back unlawfully. It is a felony
under Federal law to reenter the country after a prior
deportation. I just don't think it is the right policy for us
not to focus our enforcement resources on those individuals.
Mrs. Miller. Thank you, Director.
The Chairwoman now recognizes the Ranking Member, Mr.
Cuellar.
Mr. Cuellar. Thank you, Madam Chairwoman.
Again, Director, I certainly want to congratulate you on
the great work that you have been doing. I think, Members, if
you look at the activated jurisdiction document here, there is
a map of it, you can see everything that is green that shows
the activated. It is 97 percent. Which means out of 3,181
activated jurisdictions, you have got 3,074, which is pretty
amazing, except for the ones that we have been focusing on.
So, again, I want to congratulate you.
I also, Members, I ask you to look at the testimony, the
written testimony of the director, because he does talk about
the efficiency. There is the transparency part of it on it and
of course the safeguards that Sheriff Garcia in Harris County
had talked about when we talked about--I think Congressman
McCaul is very familiar with--to make sure that they do the
work, but at the same time provide--make sure there is no
profiling involved in that. So the input is very important on
that.
So I certainly want to thank you on that.
Besides Alabama and besides Illinois, I believe there were
a couple of jurisdictions out there that have passed ordinances
also. I think they were in California, I believe. What is it?
San Francisco, Santa Clara, I believe.
Mr. Morton. Santa Clara.
Mr. Cuellar. Exactly. Again, to follow up on this, it makes
common sense, because I remember when I did the tour to make
sure all my 12 counties, at least at the very beginning, the
counties that I represent, I was traveling rural areas, urban
areas, especially the rural areas, they liked this. Because if
you are a small community, it is very important that you get
this help. It was seen as tax savers, because at the same time,
you are able to remove those folks out there that need to be
removed. For a small community, rural community, that means a
lot. The other thing is it is just common sense. If you have
somebody there and then they are wanted for something else, it
is only common sense that we coordinate the Federal, the State,
the local partnerships. The communication part of it I think
you all are working to make sure there is a lot more
communication through the State and Federal--I mean local
level. I appreciate that.
But I think you hit something very important. I think
sometimes local State politicians have a way of attacking the
Federal Government, and then, at the same time, with one fist
out there, then the other hand out there. I don't want to point
out my State of Texas, but they point this out, saying, don't
do this, don't do this, but then they will wait for the money.
Under the SCAAP program, I think you are absolutely right; I
think you all need to do, with all due respect to those
communities, I don't represent those, but they cannot say, we
don't want you to do Secure Communities but then, at the same
time, they are requesting Federal dollars for holding those
prisoners, those persons in there and asking for Federal
dollars for reimbursement. So I would ask you, with all due
respect, to look at those communities very, very carefully,
because they cannot say, we don't want you here--they cannot be
selective in what moneys they are committing. Because as the
Chairwoman said, Federal law should preempt what they are doing
there, unless it is under Article 10. We understand that. But I
would ask you all to just look at those very carefully, because
I think it would be unfair to be with a fist out there saying
we don't want you, but then, at the same time, hand out there,
give us money for reimbursement.
So, again, Director, I don't have any questions to ask you,
but I just wanted to just say I think you are doing a great
job. Very balanced approach that you and your men are doing out
there. I really appreciate it. It is not easy. It can become a
little political sometimes. It is not your job to be political.
But I think you are doing this in a very transparent, very
fair, very focused way to make sure that we get the people who
are not supposed to be in the United States and get them out,
criminals that are not supposed to be here. So no questions,
just a comment. Appreciate your good work and the men and women
that work for you all.
Mr. Morton. Thank you.
Mr. Cuellar. Yield back the balance of my time.
Mrs. Miller. The Chairwoman now recognizes the Ranking
Member of the full committee, Mr. Thompson of Mississippi.
Mr. Thompson. Thank you very much, Madam Chairwoman.
Director Morton, in June 2011, a memorandum between ICE and
DHS for Civil Rights and Civil Liberties indicated that
statistical monitoring would be used to identify possible
anomalies in arrest patterns under Secure Communities, with
reports at least once a quarter. What has been the result of
the statistical monitoring to date?
Mr. Morton. You are right, Mr. Thompson. One of the major
reforms that we undertook to improve the transparency of the
program and to address concerns that somehow Secure Communities
might inadvertently have been used to promote racial profiling
was to create a statistical analysis. We teamed up with the
Office of Civil Rights and Civil Liberties at the Department of
Homeland Security so that it wasn't simply something that ICE
was doing itself; we had people who were knowledgeable and
expert in this area. We actually helped them to hire a
statistician.
In direct response to your question, as we have started the
statistical analyses, and we are looking at the first couple of
instances in which the statistics appear to be anomalous, and
we are doing a couple of things there. First and foremost, we
are trying to work with the Department of Justice and the Civil
Rights Division in particular to come up and use their
expertise with some modeling to understand the statistics.
There can be lots of reasons why a particular county has
statistical spikes, some of them not necessarily related to
civil rights concerns. So we are working with the Civil Rights
Division to sort of come up with a cross-departmental approach,
because ultimately it would be the Civil Rights Division that
would investigate and prosecute anything that we would refer to
them. We at ICE don't have civil rights investigative
authority.
The second thing that we are doing is, were we to identify
any particular jurisdiction that did have a concern, we would
work with the Civil Rights Division to engage in a direct
investigation in the form of interviews, on-the-ground
inspections.
We are doing our own auditing of the program, which isn't a
criminal investigation, but we go around to the various
jurisdictions and audit the results ourselves. I am happy to
say that to date we have not had instance to refer something
for direct investigation to the Civil Rights Division, but we
have had the first set of results that suggest there are some
counties we need do a little deeper digging to determine what
is going on. We are doing that with the Office of Civil Rights
now.
Mr. Thompson. Well, if, at some point, when you have moved
along with the program, some of us would be interested in
seeing some of those reports for our review.
Mr. Morton. I think we would be happy to give the
committee, or you in particular, a briefing on our results, and
share exactly what we found with you.
Mr. Thompson. On a local matter, a county south of me,
Adams County in Mississippi, Natchez, Mississippi, where some
ICE detainees sometimes are housed, there had been a rash of
gang-related violence that actually led to the death of one
guard and several injured. Explain to me, as well as committee
Members, what kind of oversight do you give private contractors
who have contracts with ICE? Kind of describe what you expect
of those companies like CCA in this particular instance.
Mr. Morton. Several things. We have detention standards
that are worked into our contract with them that they must
abide by. In many of the larger facilities that are dedicated
or primarily focused on our use, we actually have our employees
there in addition to the contractors. Even in those where we
don't have a full-time presence, we routinely visit them.
With regard to gang violence, there what we do is, just as
in the criminal justice system, for those incarcerated, we
screen for gang affiliations at intake. So we classify people
based on their criminal convictions first and foremost, but we
are looking for gang affiliations as well. We do what we can to
separate gang members so that we don't create an undue
concentration in a particular facility. Now, as you know, not
everybody volunteers that they are a member of a gang. The use
of tattoos is less widespread than it was in the past. But we
do our very best.
Mr. Thompson. Well, I thank you. I see my time has expired.
But I would like to get with you just to further this
discussion about this particular facility.
Mr. Morton. Yes.
Mr. Thompson. Thank you. I yield back, Madam Chairwoman.
Mrs. Miller. The Chairwoman now recognizes the gentleman
from South Carolina, Mr. Duncan.
Mr. Duncan. Thank you, Madam Chairwoman.
Thank you, Director Morton, for being here today. You know,
there is an interesting Constitutional debate raging across
this country right now in the wake of the Supreme Court ruling
on the Arizona law. I bring that up because South Carolina
passed a very similar law. I think there will be future Supreme
Court rulings on this. But I want to point to Justice Scalia's
dissenting opinion when he talks about the rights of the
sovereign States, and that we are a Nation of individual
sovereign States, and what rights those States have in
enforcement of Federal law, what rights the States have in
protecting and securing their own State borders. I would point
the Chairwoman and Members of the committee to read that
opinion, if you haven't, because I think it is very interesting
going forward.
Director Morton, I was reading a memorandum of March 2,
2011, where you point out some priorities for ICE. First off,
thank you for what you do and what the agency does. I also want
to mention the fallen CBP officer Mr. Cuellar mentioned
earlier. Condolences to his family. Tragic. But going back to
the priorities in 2011, interesting that you have got recent
illegal entrants. So that means that if someone had just
entered the country and is apprehended, then they get priority
for extradition, taken back to their home country. Then I read
in the June 17 memorandum, it goes on to talk about length of
presence in the United States. So someone that broke the same
law, crossed our border, just because they have been in this
country longer than someone else, they are given priority? Can
you explain the reasoning behind that, please?
Mr. Morton. Sure, Mr. Duncan. So we start out, at the
beginning of the equation is what can we do with the resources
that Congress has provided us? On average, we can remove about
400,000 people a year with the resources that we have.
Obviously, our statutory direction is broader than that. To me,
the question then is: Well, who are those 400,000 people going
to be? Are they the first 400,000 people that walk in the front
door? I don't think that that can be the approach. I think in a
world of limited resources you have to say, no, it has got to
be the 400,000 people that make the most sense for public
safety and the administration of the immigration system.
Mr. Duncan. I don't mean to interrupt you, but you are
having to utilize the resources that you are given. But an
apprehension is an apprehension whether that person has been
here for 10 years or whether that person just crossed our
border. You still have a contact with that person. So, in your
priority, if they have been here longer, you are going to let
them go; but if they just crossed the border, you are going to
send them back.
Mr. Morton. Not quite. I mean, what we are talking about is
it is not a question of apprehension, but really of detention
and ultimate removal. We have to get a removal order before we
can remove somebody from the United States. By and large, in
most instances, that is accomplished through detaining them. We
have a limited number of detention beds. So the question is: Do
we focus our resources on somebody who just came across the
border 2 years ago as opposed to somebody who came across 10
years, now has two United States citizen children and three
cars in the driveway? In those circumstances, we say we are
going to focus on the person who violated the law most
recently. We are going to focus our resources on those people
who have committed a crime. If I have to pick between putting a
criminal in a detention space or somebody who has been here a
very long time, I am going to pick the criminal every time
because I think there is a much greater effect on public safety
and immigration enforcement when I do that.
Mr. Duncan. Where does, in the prioritization, where do
visa overstays come in that hierarchy?
Mr. Morton. Well, visa overstays, as the Chairwoman noted,
are very difficult situations. They would come in recent border
entrants if they were here recently. It is a real challenge for
us. I don't want to minimize it. Roughly 40 percent of the
people who are in the country unlawfully originally came on a
visa. But the short answer to your question is that they fall
in the second prioritization. The question would be: Have they
been here a relatively recent period of time, or have they been
here a long period of time? Do they have other equities that
mean that they should be a lower priority for removal? For
example, do they have United States citizen children? Are they
married to a United States citizen? Those are the very real-
world decisions that we have to make when using the resources
that Congress gives us. We have about 34,000 detention beds on
any given day by statute. There are more people than we can put
into them.
Mr. Duncan. Real quickly, do you have access to the entry-
level data if someone came in on a visa? I was reading some of
the sharing of information of fingerprint data. Do you all have
access to the legal entry data?
Mr. Morton. We do. As the Chairwoman noted, right after 9/
11, Congress mandated information sharing. That not only do we
use it for purposes of visa overstays; it is the basis for
Secure Communities.
A little bit challenging with visa overstays in that
typically the address that we will have on the I-94, let's say
somebody is going to Disneyland for a vacation, they put that
down, they list their hotel as the address, which was their
address for that, and that is the last record that we have to
go from. Then we have to do database searches and try to
determine where that person lives. So it is a challenging
enforcement regime. But again, the short answer to your
question is, we do have access to the databases.
Mr. Duncan. Thank you, Madam Chairwoman. My time is up. I
yield back.
Mrs. Miller. The Chairwoman now recognizes the gentleman
from Arizona, Mr. Quayle.
Mr. Quayle. Thank you, Madam Chairwoman.
Thank you, Director Morton. Good to see you again.
Now, on July 10, 2009, you stated that 287(g) program is an
essential component of DHS's comprehensive immigration
enforcement strategy. Do you still agree with that assessment?
Mr. Morton. I do, typically for the jail model, where it
has proven to be a good use of our resources, a good use of the
taxpayer dollars. I don't feel that way with regard to many of
the task force agreements that have largely for economic
reasons in the jurisdictions where they are found have become
unproductive and have resulted in no removals.
Mr. Quayle. Okay. So, on the ICE website and in your
statement, there is a lot of very positive statements regarding
the 287(g) agreements and how it is great that you can have
Federal, State, and local law enforcement agencies working
together. You were saying that right now in the prison systems.
But I find it a little concerning that you have recently gotten
rid of the 287(g) agreement with Arizona State and local law
enforcement agencies. What is the reasoning behind it? Why pick
Arizona as the sole one right now to actually remove a program
that you said was an essential component of DHS's comprehensive
immigration enforcement strategy?
Mr. Morton. A couple of things. First, the agreements that
we terminated in Arizona were task force agreements. We did not
terminate the jail model agreements. They continue in place.
So, and why did we terminate those models? Because they were
leading to no removals. We viewed them as unproductive and not
a good use of taxpayer resources.
Mr. Quayle. Okay. Now let's get to the timing of this. It
was within a couple hours after the Supreme Court ruled the
main portion of Arizona's State law, SB 1070, Constitutional
when Secretary Napolitano made the statement. Did they contact
you and talk to you about why they would do it in such close
proximity to the Supreme Court ruling? If they would remove the
287(g) task force agreement if the Supreme Court ruled
differently? What was the conversation there? I am just trying
to--because the timing is extraordinarily curious. If the task
force were not actually operating in the manner that you would
have liked or that DHS would have liked, wouldn't it have been
a little bit sooner or maybe even a little bit later? But
within hours after the Supreme Court ruling, that is a very
interesting time line that I would love to hear what they spoke
to you about and what is going to be going forward.
Mr. Morton. Well, we have had discussions underway with the
Department for quite some time on the unproductive task forces.
In the President's budget request for this year, the Department
and OMB are seeking fewer dollars for the 287(g) program
precisely because the task force model has proved to be
unproductive. We were not going to renew the 287(g) agreements
that were rescinded in Arizona for the next fiscal year, so we
were going to terminate them anyway in a few months. In
discussions with the Department, we ultimately decided that it
made sense, upon the Supreme Court's ruling, to allay the
future--clearly that they are not to have a series of truncated
efforts. They were producing, as I said, zero removals for 2
years running in 6 of the 7 cases. We decided to do it all at
once.
Mr. Quayle. So there was a concerted effort and a conscious
decision that because of the decision by the Supreme Court, we
wanted to do it quickly after that because--I don't understand
why it was necessary to do it at that point, unless it was for
various political reasons from the administration.
Mr. Morton. I think we did it because we just thought that
it made the most sense to do it at the same time. We knew we
were going to terminate those agreements. They were producing
no removals. We knew that there would be questions about how
things would operate. We wanted to set the record very clear
how we were going forward. That is you can call the law
enforcement support center 24 hours a day for our assistance.
We will respond to law enforcement queries in Arizona pursuant
to our priorities. But we are not going to continue or suggest
that we were going to continue with task forces that, again,
from our perspective, were not a good use of taxpayer
resources. I think the record is very clear on that. Anything
that we are spending money on that leads to zero removals for 2
years in a row doesn't make sense.
Mr. Quayle. Okay. Now, another thing I want to talk about
is that if you look at the crux of that law and trying to
cooperate and work with Federal law enforcement officials to
actually adhere to Federal law, and then you have--and the
Chairwoman was mentioning it earlier--Cook County not being
cooperative with the Secure Communities. Have you heard of
anything that the administration is going to take against Cook
County? Are they going to sue Cook County? Are they going to
have the DOJ get involved in taking them to court because they
are not actually--they are actually contradictory and contrary
to what Federal law is rather than being--trying to aid Federal
law enforcement officials. I know this is outside, that is DOJ,
but I just want to know if you have heard anything about that.
Mr. Morton. The short answer to your question is I have
personally met with the Department of Justice to raise my
concerns. Those concerns are shared by the Secretary. She has
testified to that herself. So we are in discussions with the
Department of Justice to see what we can do on many fronts to
come to a better resolution in Secure Communities in Cook
County, because I think we all agree that the present approach
is not a good one. I don't know if you heard my answer before,
but that both the question of can we work with the Department
of Justice to look at any legal options we may have to get to a
better place with the county, but also to look at the county's
annual request for reimbursement under the Federal SCAAP
program for the individuals that they detain that are there
unlawfully. Cook County in past years has received several
million dollars each year from the Federal Government to
reimburse it for the cost of detaining people who are here
unlawfully. We just find that position wholly inconsistent with
not allowing us to----
Mr. Quayle. So you haven't heard anything about a Federal
lawsuit. Because it was pretty swift when Arizona passed their
own law and the DOJ came in pretty quickly and operated in that
fashion. But now with Cook County, since you have had some
serious issues with them, you have had discussions with DOJ,
there has been no talk about a lawsuit? Or is there a lawsuit
pending?
Mr. Morton. I have not yet heard back from the Department
of Justice. In fairness to them, we have only been meeting for
the last couple of months, and they wanted to see how certain
pieces of court decisions came out. I expect to hear from them
shortly. I can tell you that resolving the issue in Cook County
is very important for me. It is one of the single largest
detention systems in the country. Right now, it is not a
question of Cook County releasing some individuals to us. They
are releasing no individuals to us, including very violent
offenders. I just don't think that is a good policy.
Mr. Quayle. Thank you, Director.
My time has expired. Thank you, Madam Chairwoman.
Mrs. Miller. The Chairwoman now recognizes the gentlelady
from Texas, Ms. Sheila Jackson Lee.
Ms. Jackson Lee. Thank you. Thank you to the Chairwoman and
the Ranking Member.
Welcome, Director Morton, and thank you for your service.
As well let me offer my concern for the officers who were
involved in an incident of violence, to their families--and I
say violence, who were impacted, and to their families and to
your organization. We must always look to thanking those who
are on the front lines for us. I want to make sure that I do
so. I believe that the work that you have been doing is very
important. But I never come to an immigration hearing, whether
it is Judiciary that I served for however long, and here in
Homeland Security, and I call both assignments a privilege,
that what this country needs is real comprehensive immigration
reform so that we are not confusing and juxtaposing benefits
and the right opportunity for those who want to immigrate to
this country, and enforcement, and particularly enforcement
against those who would want to do us harm.
Secure Communities certainly has its failures and its
value. I think it is important that we try to determine what
lessons we have learned and how we can be more effective. I
happen to applaud the President's decision on the DREAM Act.
Living in a State like Texas, we have seen 90 percent, 99
percent good as opposed to harm. Many of us have met these
students that will be impacted up close and personal. I
appreciate that there have been a number of utilization of
powers under the law that your agency has been effective at
utilizing. But I think this Executive Order will be helpful to
all of us. But it would be better under comprehensive
immigration reform.
So I speak to two issues, and I will do it quickly. A 14-
year-old Texas girl was missing from 2010 until 2012, was
mistakenly deported to Colombia by immigration agents. It was
proven that the 14-year-old gave ICE agents a fake name which
belonged to a 22-year-old illegal immigrant from Colombia who
had warrants for her arrest. She was held in a Harris County
jail in my community. ICE agents took the 14-year-old's
fingerprints but did not confirm identity before deporting her.
Another incident, according to media reports, James Makowski, a
Chicago area resident born in India, adopted by an American
family in New Jersey, and naturalized as a U.S. citizen at age
1 was flagged by Secure Communities as an illegal immigrant
after a drug-related arrest because the Federal Government had
never updated his immigration status. He was held for 2 months
in a maximum security prison before ICE officials acknowledged
the error and canceled the detention order. Obviously, both
cases are very troubling. I think we have engaged, my office
engaged ICE on one of these troubling stories, the one in
Houston.
What failures in the Secure Communities databases and
program procedures could allow a U.S. citizen to be detained?
What is ICE doing to such? Then also please share before the
subcommittee the outreach and collaboration efforts ICE
initiated through Secure Communities, if at all, and lessons
learned on both of those cases, please. Thank you.
Mr. Morton. Thank you.
With regard, let me start with the database issues.
Obviously, one of the lessons that has become clear is that
when you have an information-sharing system that depends on
information in databases, the sharing and the results that come
from it are only as good as the information that is in the
system. So we have to have accurate records in place.
The Chicago case is under litigation, so I have got to be
careful about what I will say in that case. But I do think it
highlights the need to have accurate records from all of the
pieces of the puzzle. Part of Secure Communities is that
Congress mandated the sharing of information. It is not simply
ICE databases; it is all across the Department of Homeland
Security, in fact all across the Federal Government. We need to
make sure that the information in there is correct.
With regard to the 14-year-old, I view that case as a very
sad case. As you know, the young lady's history was somewhat
troubled. There were many steps along the way, all the way from
the moment she was arrested by the local police, she managed to
fool the judge, the prosecutor, and her own defense attorney in
that particular case, ultimately ICE, ultimately Colombian
authorities. She got a residency upon her--in her time there.
But, you know, we did meet with you and other members of
the caucus, and we took a hard look. What it told us is that
particularly with regard to juvenile offenders, when we have
some sense that something is awry, even though on the surface
everybody is saying that it is proper, we have got to go the
extra mile with juveniles to make sure that we are not making a
mistake, because mistakes can be made.
It is why I am a big believer in improved transparency of
the Secure Communities program. You are right that we, as an
agency, were not as transparent as we should have been. We
should have had better outreach. In many communities, Secure
Communities is misunderstood. There is a lot of rumor,
innuendo, concerns about things. The best way to answer those
criticisms is to have outreach, to meet with people. We are
doing that, and then to involve Members, such as yourself. I
very much appreciate the assistance you gave us in Texas when
we had our first outreach on the Secretary's memorandum with
regard to the DREAM Act kids. That was the very first outreach
in the country. It happened in your district. I think those
kinds of things are very, very helpful.
So we have just got to get out there. When a mistake is
made, not run from that mistake, own that mistake, try to
improve the system. It operates on a very large scale. Mistakes
will happen. Then get out and explain to people why we are
doing things the way we are doing them, what the reasons are
for them, and do that in a dispassionate and professional way.
Ms. Jackson Lee. Madam Chairwoman, may I just--let me thank
you for your indulgence.
Just there was one element, Director, where the
fingerprints were not checked. In your review and working with
juveniles, are you going to be more--this is under the young
lady that is 14--persistent in looking at those elements to be
able to ascertain, juvenile or not, or what condition this
person is in?
Mr. Morton. We are. One of the tricks in her case, I
believe, was that she had never been encountered before in a
way that led to her fingerprinting. So there was no other prior
fingerprint to compare against. The fingerprints that were
taken at Harris County was the very first time she had been
fingerprinted in a way that ICE could have checked.
We need to figure out a way, particularly with young
juveniles, to have extra procedures in place.
I will tell you that I have never seen a case like hers in
my entire time in the Federal Government. As I noted, she was
able to adopt an identity that many, many parts of the system
believed. That is not a perfect answer, and the result needs to
be that the system needs to deal with that, even when a
troubled person adopts an identity like that. But I will say I
do think it is a relatively rare case.
Ms. Jackson Lee. I thank the Chairwoman.
Before you close, I just want to make an inquiry. I didn't
know if you were closing.
Mrs. Miller. Yes, we are going to be closing.
Ms. Jackson Lee. Madam Chairwoman and to the Ranking
Member, I think this has been a very helpful hearing. I
appreciate the director's comments.
But with new technology and young people being more mature
than they are, I think we need to really be focused on how we
make sure we are attentive to those kinds of cases.
I would also ask if the Chairwoman and the Ranking Member
would consider incidents that are occurring at the border.
There are lawsuits going on with respect to certainly very fine
leadership at the border, but some troubling incidences where
documented U.S. citizens' papers are being taken away, and they
are being forced to sign papers that they are not U.S.
citizens. We want to make sure that we don't have illegal
entry. But we also, those of us in Texas, are concerned that
our U.S. citizens who might decide to live temporarily in
Mexico are having their documents voided out of pressure and
intimidation. I believe it is a very viable hearing or inquiry
to make. I will write a letter to that extent and ask for
further opportunity for us to look into that.
I yield back. I hope both the Chairwoman and Ranking Member
would consider that as an important hearing. If we give
resources to Customs, CBP, I think those resources should be
used in an effective and legal and upstanding manner, as they
have been. But this is an incident or incidents that I think
require our review.
I yield back. I thank the gentlelady.
Mrs. Miller. I would comment to all of the Members that the
hearing record will be held open for 10 days. So any other
additional comments, questions, letters, what have you, can be
submitted certainly for the record.
I certainly want to thank Director Morton for attending
today. I think this was an excellent hearing. A lot of
questions. A lot of good answers. A lot of challenges ahead for
your agency, for the committee, for the Nation as well as we
all try to do our very best to make sure that we do have secure
borders.
I know you are running for an airplane, and we said we
would try to be timely and cognizant of that fact. But we
appreciate your service. On behalf of a very grateful Nation,
we certainly appreciate the men and women in your agency that
work very diligently each and every day to keep our country
safe. With that, the subcommittee will stand adjourned.
[Whereupon, at 11:10 a.m., the subcommittee was adjourned.]