[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
OPEN BORDERS: THE IMPACT OF PRESIDENTIAL AMNESTY ON BORDER SECURITY
=======================================================================
HEARING
before the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
DECEMBER 2, 2014
__________
Serial No. 113-91
__________
Printed for the use of the Committee on Homeland Security
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COMMITTEE ON HOMELAND SECURITY
Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Peter T. King, New York Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Paul C. Broun, Georgia Yvette D. Clarke, New York
Candice S. Miller, Michigan, Vice Brian Higgins, New York
Chair Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania William R. Keating, Massachusetts
Jeff Duncan, South Carolina Ron Barber, Arizona
Tom Marino, Pennsylvania Dondald M. Payne, Jr., New Jersey
Jason Chaffetz, Utah Beto O'Rourke, Texas
Steven M. Palazzo, Mississippi Filemon Vela, Texas
Lou Barletta, Pennsylvania Eric Swalwell, California
Richard Hudson, North Carolina Vacancy
Steve Daines, Montana Vacancy
Susan W. Brooks, Indiana
Scott Perry, Pennsylvania
Mark Sanford, South Carolina
Curtis Clawson, Florida
Brendan P. Shields, Staff Director
Joan O'Hara, Acting Chief Counsel
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
(II)
C O N T E N T S
----------
Page
Statements
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Chairman, Committee on Homeland
Security:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Oral Statement................................................. 4
Prepared Statement............................................. 5
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas:
Prepared Statement............................................. 7
Witness
Hon. Jeh Johnson, Secretary, U.S. Department of Homeland
Security:
Oral Statement................................................. 8
Prepared Statement............................................. 10
For the Record
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas:
Statement of Mary Meg McCarthy, Executive Director, National
Immigrant Justice Center..................................... 33
Statement of the American Immigration Lawyers Association...... 37
Statement of Laura W. Murphy, Director, and Christopher
Rickerd, Policy Counsel, ACLU Washington Legislative Office;
Vicki B. Gaubeca, Director, and Brian Erickson, Policy
Advocate, the ACLU of New Mexico, Regional Center for Border
Rights; Christian Ramirez, Director, Southern Border
Communities Coalition; and Ryan Bates, Executive Director,
Michigan United, Rich Stolz, Executive Director, OneAmerica,
and Steve Choi, Executive Director, New York Immigration
Coalition, Northern Borders Coalition........................ 39
Appendix
Questions From Honorable Susan W. Brooks for Honorable Jeh C.
Johnson........................................................ 59
OPEN BORDERS: THE IMPACT OF PRESIDENTIAL AMNESTY ON BORDER SECURITY
----------
Tuesday, December 2, 2014
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 9:05 a.m., in Room
311, Cannon House Office Building, Hon. Michael T. McCaul
[Chairman of the committee] presiding.
Present: Representatives McCaul, Smith, King, Rogers,
Miller, Meehan, Duncan, Chaffetz, Palazzo, Barletta, Hudson,
Brooks, Perry, Sanford, Clawson, Thompson, Sanchez, Jackson
Lee, Higgins, Keating, Barber, Payne, O'Rourke, Vela, and
Swalwell.
Chairman McCaul. The Committee on Homeland Security will
come to order.
The committee is meeting today to hear testimony from
Secretary Jeh Johnson on the administration's recent Executive
Actions to grant temporary relief to millions of unlawful
immigrants and the effect such actions will have on the
security of our Nation's borders.
I now recognize myself for an opening statement.
Today we are here to talk about illegal immigration and the
grave consequences of the administration's recent actions to
bypass Congress. Immigration reform is an emotional and
divisive issue; there is no doubt about that. But the
President's unilateral actions to bypass Congress undermine the
Constitution and threaten our democracy.
Let me be clear: Our immigration system is broken, and we
need to fix it. America has always stood proudly as a beacon
for hope for millions who are seeking a better life, and we
should work hard to keep it that way. But regardless of where
you stand on this issue, there is a right way to do this and
there is a wrong way, and, unfortunately, the President has
taken the wrong way.
In addition, the President has risked breaking something
much more fundamental, and that is our democratic process. We
are a Nation of laws. Yet this unprecedented Executive power
grab undermines the principle that the people, not just one
man, should be the ultimate decisionmakers in our country's
most important political matters.
This action also has poisoned the well here in Washington
at a time when Americans desperately want their Government to
work together. We are facing crucial challenges that require
Congress and the White House to cooperate, from combating
overseas threats to driving economic growth. By making an end-
run around Congress, the President has deliberately and
willfully broken the trust that is needed between our branches
of Government.
The President knows the damage of these actions. In fact,
he has said over 20 times in his Presidency that he did not
have the authority to take Executive Action on immigration and
that this is, ``not how democracy works.''
He also said doing so will lead to a surge in more illegal
immigration. He was right, and it will. History has proven that
amnesty perpetuates a cycle of illegal entry into this country.
This was true in the 1980s, and it has proven true under this
administration's abuse of prosecutorial discretion--a power to
decide when to prosecute law breakers and when not to, a power
which should be used narrowly and carefully. This
administration has done the opposite. They have taken a
sweeping approach to prosecutorial discretion that makes a
mockery of the law.
The consequences are very real. This summer, the
administration's refusal to enforce our immigration laws
enticed at least 60,000 unaccompanied children to make the
perilous journey to our borders. Many traveled to the United
States under misinformation regarding the administration's
granting of permisos. We can expect many, many more to do the
same because of the President's recent actions.
The lax interior enforcement policies adopted by this
administration coupled with even the perception of amnesty
become a powerful magnet that encourages more illegal
immigration. We essentially tell citizens of other countries:
``If you come here, you can stay. Don't worry, we don't deport
you.''
The reality on the ground is that, unless you commit
multiple crimes, the chances of your being removed from this
country are close to zero. This year, the U.S. Border Patrol
apprehended almost 500,000 individuals along our Southern
Border, but less than half were deported. Those who remained
were given notices to appear before an immigration judge, with
a court date years away, and released into the country. We know
that the majority will never check back in with the
authorities.
If we don't think that message is making its way back to
Mexico and Central America, we are simply fooling ourselves. We
will see a wave of illegal immigration because of the
President's actions.
At its core, the President's unilateral amnesty plan is
deeply unfair to the millions who are waiting in line to become
a part of our great Nation, and it demonstrates reckless
disregard for America's security. We have a formal immigration
process for a reason: To promote fairness in allowing people to
enter the United States and to keep those who will seek to do
us harm outside of our borders.
Sadly, the Department of Homeland Security is unprepared to
handle the coming surge that the President's policies will
incite. The Border Patrol's resources are already strained as
immigrants pour across the border, making it difficult to
identify smugglers, criminals, and potential terrorists.
We need to reform our immigration laws, but we need to do
it the right way, and that means starting the process in the
lawmaking branch of our Government. Congress will address
immigration reform, but we need to do so in an intelligent way
and in keeping with the wishes of the American people. The
majority of Americans do not agree with the President's
Executive Actions. They want Congress to find a solution, one
that begins with securing our borders.
I look forward to hearing from the Secretary, and I hope
that he will address the serious concerns Congress and the
American people have about the President's decision. We cannot
turn a blind eye to the real threats which these actions will
bring to our country's doorstep.
[The statement of Chairman McCaul follows:]
Statement of Chairman Michael T. McCaul
December 2, 2014
Today, we're here to talk about illegal immigration and the grave
consequences of the administration's recent actions to bypass Congress.
Immigration reform is an emotional and divisive issue; there is no
doubt about that. But the President's unilateral actions to bypass
Congress undermine the Constitution and threaten our democracy.
Let me be clear: Our immigration system is broken, and we need to
fix it. America has always stood proudly as a beacon of hope for
millions who are seeking a better life. And we should work hard to keep
it that way.
But regardless of where you stand on this issue, there is a right
way to do this, and there is a wrong way. And unfortunately the
President has taken the wrong way.
In addition, the President has risked breaking something much more
fundamental: Our democratic process. We are a Nation of laws. Yet this
unprecedented Executive power grab undermines the principle that the
people--not just one man--should be the ultimate decision makers on our
country's most important political matters.
This action has also ``poisoned the well'' here in Washington at a
time when Americans desperately want their Government to work together.
We are facing crucial challenges that require Congress and the
White House to cooperate, from combating overseas threats to driving
economic growth. But by making an end-run around Congress, the
President has deliberately and willfully broken the trust that is
needed between our branches of Government.
The President knows the damage of these actions. He has said over
20 times in his Presidency that he did not have the authority to take
Executive Action on immigration, and that this is ``not how democracy
works.'' He also said doing so would, ``lead to a surge in more illegal
immigration.'' He was right. It will.
History has proven that amnesty perpetuates a cycle of illegal
entry into this country. This was true in the 1980s and has proven true
under this administration's abuse of ``prosecutorial discretion''--a
power to decide when to prosecute lawbreakers and when not to, a power
which should be used narrowly and carefully. This administration has
done the opposite. They've taken a sweeping approach to prosecutorial
discretion that makes a mockery of the law.
The consequences are very real. This summer, the administration's
refusal to enforce our immigration laws enticed at least 60,000
unaccompanied children to make the perilous journey to our borders.
Many travelled to the United States under misinformation regarding
the administration granting of ``permisos.'' We can expect many, many
more to do the same because of the President's recent actions.
The lax interior enforcement policies adopted by this
administration coupled with even the perception of amnesty become a
powerful magnet that encourages more illegal immigration. We
essentially tell citizens of other countries if you come here, you can
stay--don't worry, we won't deport you. The reality on the ground is
that unless you commit multiple crimes, the chances of your being
removed from this country are close to zero.
This year the U.S. Border Patrol apprehended 479,000 individuals
along the Southern Border but less than half were deported. Those who
remained were given notices to appear before an immigration judge, with
a court date years away, and released into the country. We know that
the majority will never check back in with authorities.
If we don't think that message is making its way back to Mexico and
Central America, we are simply fooling ourselves. We will see a wave of
illegal immigration because of the President's actions.
At its core, the President's unilateral amnesty plan is deeply
unfair to the millions who are waiting in line to become a part of our
great Nation, and it demonstrates reckless disregard for America's
security. We have a formal immigration process for a reason: To promote
fairness in allowing people to enter the United States and to keep
those who will seek to do us harm outside of our borders.
Sadly, the Department of Homeland Security is unprepared to handle
the coming surge that the President's policies will incite. The Border
Patrol's resources are already strained as immigrants pour across the
border, making it difficult to identify smugglers, criminals, and
potential terrorists.
We need to reform our immigration laws, but we need to do it the
right way. And that means starting the process in the lawmaking branch
of our Government. Congress will address immigration reform. But we
need to do so in an intelligent way, and in keeping with the wishes of
the American people. The majority of Americans do not agree with the
President's Executive Actions. They want Congress to find a solution--
one that begins with securing our borders.
I look forward to hearing from the Secretary, and I hope he will
address the serious concerns Congress and the American people have
about the President's decision.
We cannot turn a blind eye to the real threats which these actions
will bring to our country's doorstep.
Chairman McCaul. With that, the Chairman now recognizes the
Ranking Member.
Mr. Thompson. Thank you, Mr. Chairman, for holding today's
hearing.
I would like to thank Secretary Johnson for making the time
to be here to discuss recently announced Executive Actions on
immigration and border security. As well as your fifth
appearance before this committee in your short 12-month period
shows that you are accessible, and I appreciate it.
Since 1956, Presidents have granted temporary immigration
relief to impacted individuals on 39 separate occasions.
Therefore, it would seem changes outlined by President Obama on
November 20 are not outside the bounds of Presidential
authority as provided under our Constitution.
Approximately 11 million undocumented individuals are
forced to hide in the shadows, even as they live and work in
plain sight in communities big and small across our Nation.
Time and again, the House Republican leadership has been
unwilling to act to fix our broken immigration system.
In the face of this crisis and the absence of Congressional
action, the President acted in a measured way that is likely to
improve both our Nation's security and economy. Specifically,
the President announced an establishment of the Deferred Action
for Parental Accountability program, which delays deportation
for immigrants who have lived illegally in the United States
for more than 5 years but have children who are citizens or
have green cards.
Contrary to messaging from those who disagree with the
President and many of his policies unrelated to immigration,
this deferred action does not provide relief to recent border
crossers. If the applicant can pass a criminal background check
and pay a fee, he or she could qualify for a work permit and
avoid deportation for 3 years at a time. Approximately 4
million immigrants are expected to qualify for this temporary
relief.
This approach to provide deferred enforcement in order to
keep families intact in light of Congressional failure to
provide such relief is not novel. The Family Fairness Program,
implemented by President Reagan and expanded by President
George H.W. Bush, provided deferred enforcement for close
family members of individuals legalized by the Immigration
Reform and Control Act.
President Obama's directive rightly prioritizes the removal
of undocumented individuals who have committed serious crimes,
thus enhancing the safety of our communities.
I am troubled by the extreme criticism and disdain that
this temporary and limited set of actions has received by some
in Congress. The concept of families with working parents and
children who attend school is consistent with the values we all
hold. Now, with the President's announcement, this value or
fabric of America is now being called ``renegade'' and a basis
for more illegal action.
A fair criticism may be that vulnerable people in violence-
ridden communities in Central America will be misled by
enterprising coyotes and smugglers about the scope of
individuals covered by the President's action. I look forward
to hearing from Secretary Johnson about planning efforts that
are being rolled out in anticipation of such misinformation.
We all know that recent border-crossers would not be
covered. Even if there is an upsurge based on misinformation,
Congress has made significant investment in personnel and
equipment at the Southern Border that should ensure that DHS is
able to effectively respond to any increases in attempted
border crossings.
Let me be clear: The President's Executive Actions are a
good start. However, there are still many people whom I believe
deserve such consideration but are left out. Specifically, I
would point to agricultural workers. The President's Executive
Action does not provide specific relief to an estimated
quarter-million of those workers that might be eligible for
some type of deferred action. More remains to be done to
address the labor needs for America's farmers. Where the
Executive Action remains silent, there is an opportunity for
Congress to legislate.
Let me close with two thoughts. To those who have said the
President's actions do not represent the will of the American
people, I say you need to listen better. Americans, by wide
margins, believe our immigration system can be fixed in a fair
and humane way that does not jeopardize our security.
Second, to those in Congress who have embraced the idea of
putting the Department of Homeland Security in budgetary limbo
while ever other Federal agency is funded for fiscal year 2015,
I say you should really think about the message that sends
about Congress' commitment to homeland security.
In closing, it is my hope that Congress will use this
action as a starting point to legislate permanent fixes to our
Nation's immigration system and further improve our border
security. Mr. Chairman, I am willing to work with you
throughout the remainder of this Congress and the next Congress
to make these legislative changes happen.
I yield back.
[The statement of Mr. Thompson follows:]
Statement of Ranking Member Bennie G. Thompson
Since 1956, Presidents have granted temporary immigration relief to
impacted individuals on 39 separate occasions; therefore, it would seem
that changes outlined by President Obama on November 20 are not outside
the bounds of Presidential authority, as provided under our
Constitution.
Approximately 11 million undocumented individuals are forced to
hide in the shadows even as they live and work in plain sight in
communities big and small across our Nation. Time and again, the House
Republican Leadership has been unwilling to act to fix our broken
immigration system. In the face of this crisis and the absence of
Congressional action, the President acted in a measured way that is
likely to improve both our Nation's security and economy.
Specifically, the President announced an establishment of the
Deferred Action for Parental Accountability Program--which delays
deportation for immigrants who have lived illegally in the United
States for more than 5 years but have children who are citizens or have
green cards.
Contrary to messaging from those who disagree with the President
and many of his policies unrelated to immigration, this deferred action
does not provide relief to recent border crossers. If the applicant can
pass a criminal background check and pay a fee, he or she could qualify
for a work permit and avoid deportation for 3 years at a time.
Approximately 4 million immigrants are expected to qualify for this
temporary relief. This approach--to provide deferred enforcement in
order to keep families intact in light of Congressional failure to
provide such relief--is not novel. The ``Family Fairness'' program
implemented by President Reagan and expanded by President George H.W.
Bush provided deferred enforcement for close family members of
individuals legalized by the Immigration Reform and Control Act.
President Obama's directive rightly prioritizes the removal of
undocumented individuals who have committed serious crimes, thus
enhancing the safety of our communities.
I am troubled by the extreme criticism and disdain that this
temporary and limited set of actions has received by some in Congress.
The concept of families with working parents and children who attend
school is consistent with values we all hold. Now, with the President's
announcement this value or fabric of America is now being called
renegade and a basis for more illegal action.
A fair criticism may be that vulnerable people in violence-ridden
communities in Central America will be misled by enterprising
``coyotes'' and smugglers about the scope of individuals covered by the
President's actions. I look forward to hearing from Secretary Johnson
about planning efforts that are being rolled out in anticipation of
such misinformation. We all know that recent border crossers would not
be covered.
Even if there is an upsurge based on such misinformation, Congress
has made significant investments in personnel and equipment at the
Southern Border that should ensure that DHS is able to effectively
respond to any increases in attempted border crossings.
Let me be clear, the President's Executive Actions are a good
start. However, there are still many people whom I believe deserve such
consideration but are being left out. Specifically, I would point to
agricultural workers.
The President's Executive Action does not provide specific relief
to an estimated quarter million of these workers that might be eligible
for some type of deferred action. More remains to be done to address
the labor needs of America's farmers. Where the Executive Action
remains silent, there is an opportunity for Congress to legislate.
Let me close with two thoughts. To those who have said that the
President's actions do not represent the will of the American people, I
say, you need to listen better. Americans, by wide margins, believe our
immigration system can be fixed in a fair and humane way that does not
jeopardize our security.
Second, to those in Congress who have embraced the idea of putting
the Department of Homeland Security in budgetary limbo while every
other Federal agency is funded for fiscal year 2015, I say ``you should
really think about the message that sends about Congress' commitment to
homeland security.''
In closing, it is my hope that Congress will use this action as a
starting point to legislate permanent fixes to our Nation's immigration
system and further improve our border security. Mr. Chairman, I am
willing to work with you throughout the remainder of this Congress and
next Congress to make these legislative changes happen.
Chairman McCaul. I thank the Ranking Member. Other Members
are reminded that statements may be submitted for the record.
[The statement of Hon. Jackson Lee follows:]
Statement of Honorable Sheila Jackson Lee
December 2, 2014
Good morning and welcome. I would like to begin by thanking
Chairman McCaul and Ranking Member Thompson for agreeing to convene
this full committee hearing entitled, ``Open Borders: The Impact of
Presidential Amnesty on Border Security.''
This is a very important matter, and as Ranking Member of the
Homeland Security Border and Maritime Security Subcommittee, as well
the Representative of the 18th Congressional District of Texas centered
in Houston and located 300 miles from the Southwest Border. I
appreciate your leadership in addressing the Department of Homeland
Security's (DHS) efforts to secure our Nation's borders. Enhancing
public safety along the Southwest Border remains an enormous priority
for my Congressional district and the State of Texas.
I would like to also welcome our distinguished witness: Jeh
Johnson, Secretary of the Department of Homeland Security.
The President has taken steps pursuant to his legal authority to
fix our Nation's broken immigration system. The Executive Action
prioritizes the deporting of felons, not families, and requires certain
undocumented immigrants to pass a criminal background check and pay
their fair share of taxes as they register to temporarily stay in the
United States without fear of deportation.
The President's actions will streamline legal immigration to boost
our economy and will promote naturalization for those who qualify.
The Executive Actions taken by the President will strengthen border
security by adding 20,000 more Border Patrol Agents; crack down on
companies who hire undocumented workers; create an earned path to
citizenship for undocumented immigrants who pay a fine and taxes, pass
a background check, learn English and go to the back of the line; and
boost our economy and keeps families together by cutting red tape to
simplify our legal immigration process.
The estimated number of undocumented immigrants in this country
grew to a high of about 12.2 million in 2006, dropped to around 11.3
million, and has stopped growing for the first time since the 1980s.
The number of apprehensions, along our Nation's Southern Border has
declined significantly; with the number now less than a third of what
it was 12 years ago and today has reached the lowest level since the
1970s.
Immigration reform is good for the Nation and the economy. The
benefit of immigration to the United States is evident in our National
history. Immigrants represent the majority of our Nation's PhDs in
math, computer science, and engineering, and over one-quarter of all
U.S.-based Nobel laureates over the past 50 years were foreign-born.
Immigrants are also more than twice as likely as native-born
Americans to start a business in the United States. They have started 1
of every 4 American small businesses and high-tech start-ups, and more
than 40 percent of Fortune 500 companies were founded by immigrants or
their children.
The President is asking Congress for a common-sense comprehensive
immigration reform bill. This committee has already done this in a
collegial bipartisan way when we drafted H.R. 1417, Border Security
Results Act, which was passed by the Full Homeland Security Committee
in May of 2013, and placed on the House Calendar where it has yet to be
taken up for full House consideration. This bill would go a long way in
addressing concerns regarding border security.
The President is offering a common-sense beginning, but only
Congress can complete the work of comprehensive immigration reform.
This Executive Action is not a grant of amnesty for those who have
entered the country unlawfully. It is an opportunity for the United
States to create a stable environment for undocumented persons to come
out of the shadows.
By the authority vested in the office of the President of the
United States by the Constitution and the laws of this great Nation
President Obama issued an order to modernize and streamline the U.S.
immigration system, by directing that the following occur:
Four million undocumented immigrants with no criminal record
and who have lived in the United States for at least 5 years
may now apply for a program that allows them to work and
protects them from deportation, but does not create a path for
legal residency or citizenship;
An additional 1 million people may seek protection from
immediate deportation;
Through expansion of the existing program for ``Dreamers,''
which President Obama announced previously will no longer be
limited by age;
No changes to the status of farm workers;
None of the 5 million immigrants who are expected to have
their status in the United States altered will receive any
legal protections such as Government subsidies for health care
under the Affordable Care Act; and
Children who are American citizens but whose parents are
undocumented will have access to Health Insurance, Medicaid,
food stamps etc. These benefits will not extend to their non-
citizen parents.
President Obama's actions do not create a path to citizenship nor
do they give legal status to undocumented persons, only Congress can do
that. President Obama's action on immigration is not new.
President Obama's actions fall within the scope of his
Constitutional authority to prioritize Federal resources to focus on
real threats to our Nation. Executive authority has been used by
Presidents Dwight D. Eisenhower, Ronald Reagan, and George W. Bush to
address deficiencies in how the Nation can best address the complex
issue of immigration when Congress was unwilling or unable to provide a
legislative solution.
Past Presidents have used their prosecutorial discretion authority
to address immigration problems. President Obama has decided to use his
Presidential prosecutorial discretion to prioritize Federal resources
as they relate to removal of undocumented persons. Congress only
provides enough funding to the Department of Homeland Security for
about 400,000 deportations of undocumented persons each year.
President Obama's action does not create a path to citizenship nor
does it prohibit Congress from acting or prevent the next President to
issue another order to change the prosecutorial discretion outlined by
this Executive Order.
Over a year ago, the Senate passed S. 744, Border Security,
Economic Opportunity, and Immigration Modernization Act and referred it
to the House for Consideration.
Today's hearing will allow Members of the committee to receive
information on what the Department of Homeland Security has done to
protect our Nation's borders and address the limited resources
available for identifying undocumented persons for removal.
I look forward to Secretary Johnson's testimony. Thank you Mr.
Chairman and I yield back the balance of my time.
Chairman McCaul. We are pleased here today to have
Secretary Jeh Johnson back to the committee. As always, we may
not agree on all the issues, but we do so with civility.
Mr. Johnson, as many of you know, has a distinguished
record, both at the Department of Defense and at the Department
of Justice, and we appreciate your service with the Department
of Homeland Security.
With that, you are recognized for an opening statement.
STATEMENT OF HONORABLE JEH JOHNSON, SECRETARY, U.S. DEPARTMENT
OF HOMELAND SECURITY
Secretary Johnson. Thank you, Chairman McCaul, Ranking
Member Thompson, committee Members here.
Let me begin by saying, in the same vein as the Chairman's
remarks, we won't always agree, we have not always agreed, but
I do appreciate the friendship and the collegiality that we
enjoy between individual Members of this committee and their
staffs and me and my staff.
This is the 12th time I have testified before Congress in
11 months, the fifth time before this committee. I feel like I
know a number of you well.
On November 20, the President announced a series of
Executive Actions to begin to fix our immigration system. The
President views these actions as a first step toward reform of
the system and continues to count on Congress for the more
comprehensive reform that only legislative changes can provide.
The actions we took will begin to fix the system in a
number of respects.
To promote border security for the future and to send a
strong message that our borders are not open to illegal
migration, we prioritize the removal of those apprehended at
the border and those who came here illegally after January 1,
2014, regardless of where they are apprehended.
We also announced the next steps to strengthen our border
security efforts as part of our Southern Border Campaign
Strategy, which I first announced earlier this year.
To promote public safety, we made clear that those
convicted of crimes, criminal street gang members, and National
security threats are also priorities for removal.
To promote accountability, we encourage those undocumented
immigrants who have been here for at least 5 years, have sons
or daughters who are citizens or lawful permanent residents,
and do not fall into one of our enforcement priorities to come
out of the shadows, get on the books, and pass National
security and criminal background checks. After clearing all
their background checks, these individuals are eligible for
work authorization and will be able to pay taxes and contribute
more fully to our economy.
The reality is that, given our limited resources, these
people are not--and have not been for years--priorities for
removal. It is time we acknowledge that and encourage them to
be held accountable. This is simple common sense.
To rebuild trust with State and local law enforcement which
are no longer honoring ICE detainers, we are ending the
controversial Secure Communities Program as we know it and
making a fresh start with a new program that fixes existing
problems.
To promote U.S. citizenship, we will enable applicants to
pay the $680 naturalization fee by credit card and expand
citizenship public awareness.
To promote the U.S. economy, we will take administrative
actions to better enable U.S. businesses to hire and retain
qualified, highly-skilled foreign-born workers.
The reality is that for decades Presidents have used
Executive authority to enhance immigration policy. President
Obama views these actions as a first step toward the reform of
the system and continues to count on Congress for the more
comprehensive reform that only changes in law can provide. I
would like to add to that: I, too, would welcome the
opportunity to work with Members of this committee on
comprehensive immigration reform legislation.
I recommended to the President each of the Homeland
Security reforms to the immigration system that he has decided
to pursue. These recommendations were the result of extended
and candid consultations I had with the leadership of
Immigration and Customs Enforcement, Customs and Border
Protection, and U.S. Citizenship and Immigration Services.
Along the way, I also spoke with members of the workforce who
implement and enforce the law to hear their views. In my own
view, any significant change in policy requires close
consultation with those who administer the system.
We also consulted a wide range of stakeholders, including
business and labor leaders, law enforcement officers, religious
leaders, and Members of Congress from both sides of the aisle.
We also consulted with the Department of Justice, and we
received a formal written opinion from the Justice Department's
Office of Legal Counsel concerning enforcement prioritization
and deferred action, and that opinion has been made public.
Thank you for your attention to these remarks. I look
forward to your questions.
[The prepared statement of Secretary Johnson follows:]
Prepared Statement of Hon. Jeh C. Johnson
December 2, 2014
Thank you Chairman McCaul, Ranking Member Thompson, and committee
Members for the opportunity to testify today.
On November 20 President Obama announced a series of Executive
Actions to begin to fix our immigration system. The President views
these actions as a first step toward reform of the system, and
continues to count on Congress for the more comprehensive reform that
only legislative changes can provide.
The actions we took will begin to fix the system in a number of
respects.
To promote border security for the future, and to send a strong
message that our borders are not open to illegal migration, we
prioritize the removal of those apprehended at the border and those who
came here illegally after January 1, 2014, regardless of where they are
apprehended. We also announced the next steps to strengthen our border
security efforts as a part of our Southern Border Campaign Strategy,
which I first announced earlier this year.
To promote public safety, we make clear that those convicted of
crimes, criminal street gang members, and National security threats are
also priorities for removal.
To promote accountability, we encourage those undocumented
immigrants who have been here for at least 5 years, have sons or
daughters who are citizens or lawful permanent residents, and do not
fall into one of our enforcement priorities, to come out of the
shadows, get on the books, and pass National security and criminal
background checks. After clearing all their background checks, these
individuals are eligible for work authorization and will be able to pay
taxes and contribute more fully to our economy. The reality is that,
given our limited resources, these people are not priorities for
removal--it's time we acknowledge that and encourage them to be held
accountable. This is simple common sense.
To rebuild trust with State and local law enforcement which are no
longer honoring ICE detainers, we are ending the controversial Secure
Communities program as we know it, and making a fresh start with a new
program that fixes existing problems.
To promote U.S. citizenship, we will enable applicants to pay the
$680 naturalization fee by credit card and expand citizenship public
awareness.
To promote the U.S. economy, we will take administrative actions to
better enable U.S. businesses to hire and retain qualified, highly-
skilled foreign-born workers.
The reality is that, for decades, Presidents have used Executive
authority to enhance immigration policy. President Obama views these
actions as a first step toward the reform of the system, and continues
to count on Congress for the more comprehensive reform that only
changes in law can provide.
I recommended to the President each of the Homeland Security
reforms to the immigration system that he has decided to pursue. These
recommendations were the result of extended and candid consultations I
had with the leadership of Immigration and Customs Enforcement (ICE),
Customs and Border Protection (CBP) and U.S. Citizenship and
Immigration Services (USCIS). Along the way, I also spoke with members
of the workforce who implement and enforce the law to hear their views.
In my own view, any significant change in policy requires close
consultation with those who administer the system. We also consulted a
wide range of stakeholders, including business and labor leaders, law
enforcement officers, religious leaders, and Members of Congress from
both sides of the aisle. We also consulted with the Department of
Justice, and we received a formal, written opinion from the Justice
Department's Office of Legal Counsel concerning enforcement
prioritization and deferred action, and that opinion has been made
public.
Here is a summary of our Executive Actions:
Strengthening border security. Our Executive Actions emphasize that
our border is not open to future illegal migration and that those who
come here illegally will be sent back, unless they qualify for some
form of humanitarian relief under our laws. The reality is that, over
the last 15 years spanning the Clinton, Bush, and Obama
administrations, much has been done to improve border security. But,
through the Executive Actions announced last week, we can and will do
more.
Today, we have unprecedented levels of border security resources--
personnel, equipment, and technology--along our Southwest Border. This
investment has produced significant positive results. Apprehensions
have declined from over 1.6 million in 2000 to around 400,000 a year--
the lowest rate since the 1970s. According to Pew Research, the number
of undocumented immigrants in this country grew to a high of 12.2
million in 2007 and has remained, after a slight drop, at about 11.3
million ever since. That means this population has stopped growing for
the first time since the 1980s, and over half of these individuals have
been in the United States for 13 years.
Without a doubt, we had a setback this summer. We saw an
unprecedented spike in illegal migration into South Texas--from
Guatemala, Honduras, and El Salvador. And as everyone knows, it
consisted of large numbers of unaccompanied children and adults with
children. We responded with more security and law enforcement
resources; more processing centers; more detention space; more Border
Patrol Agents in the Rio Grande Valley; more prosecution of criminal
smuggling organizations; an aggressive public message campaign;
engagement of Central American leaders by the President and the Vice
President; and increased interdiction efforts by the government of
Mexico. And, since the spring, the numbers of unaccompanied children
crossing the Southern Border illegally have gone down considerably:
May-10,578; June-10,620; July-5,499; August-3,138; September-2,426;
October-2,529.
However, we are not finished with the work of securing our border.
We can and will do more--that's a critical component of the President's
Executive Actions.
We will build upon the border security infrastructure we put in
place last summer. We announced several days ago the opening of another
detention facility for adults with children in Dilley, Texas, that has
the capability to detain over 2,000 individuals. At the same time, we
will close the smaller, temporary facility for adults with children at
Artesia, New Mexico. We are developing a ``Southern Border Campaign
Strategy'' to fundamentally alter the way in which we marshal resources
to the border under the direction of three new Department task forces.
They will follow a focused risk-based strategy, with the overarching
goals of enforcing our immigration laws and interdicting individuals
seeking to illegally cross land, sea, and air borders. These actions
are designed to send a clear message: In the future, those who attempt
to illegally cross our borders will be sent back.
Creating new and clearer enforcement prioritization policies.--This
new policy will also have a strong border security component to it, in
addition to prioritizing for removal public safety and National
security threats. Virtually every law enforcement agency engages in
prosecutorial discretion. With the finite resources an agency has to
enforce the law, it must prioritize use of those resources. To this
end, DHS will implement a new and clearer enforcement and removal
policy. The new policy places: (i) Top priority on National security
threats, convicted felons, criminal gang participants, and illegal
entrants apprehended at the border; (ii) second-tier priority on those
convicted of significant or multiple misdemeanors and those who entered
or re-entered this country unlawfully after January 1, 2014--regardless
of whether they are apprehended at the border--or significantly abused
the visa or visa waiver programs; and (iii) the lowest priority are
those who are non-criminals but who have failed to abide by a final
order of removal issued on or after January 1, 2014.
Giving people the opportunity to be held accountable.--The reality
is that, undocumented immigrants who have been in this country for
years, raising American families and developing ties to the community.
Many of these individuals have committed no crimes and are not
enforcement priorities. It is time that we acknowledge this as a matter
of official policy and encourage eligible individuals to come out of
the shadows, submit to criminal and National security background
checks, and be held accountable.
We will therefore offer, on a case-by-case basis, deferred action
to individuals who: (i) Are not removal priorities under our new
policy, (ii) have been in this country at least 5 years, (iii) have
sons or daughters who are U.S. citizens or lawful permanent residents,
and (iv) present no other factors that would make a grant of deferred
action inappropriate. The reality is that our finite resources will not
and should not be expanded to remove these people. We are also amending
eligibility for the Deferred Action for Childhood Arrivals (DACA)
program. At present, eligibility is limited to those who were under 31
years of age on June 15, 2012, entered the United States before June
15, 2007, and were under 16 years old when they entered. We will amend
eligibility for DACA to cover all undocumented immigrants who entered
the United States before the age of 16, not limited to those born after
June 15, 1981. We are also adjusting the cut-off date from June 15,
2007 to January 1, 2010 and expanding the period of work authorization
from 2 years to 3 years.
President Obama's administration is not the first to undertake such
actions. In fact, the concept of deferred action is an established,
long-standing administrative mechanism dating back decades, and it is
one of a number of similar mechanisms administrations have used to
grant temporary immigration relief for humanitarian and other reasons.
For example, Presidents Reagan and Bush authorized Executive Action to
shield undocumented children and spouses who did not qualify for
legalization under the Immigration Reform and Control Act of 1986. This
``Family Fairness Program'' used a form of relief known at the time as
``indefinite voluntary departure,'' which is similar to the deferred
action authority we use today.
Fixing Secure Communities.--We will end the Secure Communities
program as we know it. The overarching goal of the program is a good
one, but it has attracted wide-spread criticism in its implementation
and has been embroiled in litigation. Accordingly, we will replace it
with a new ``Priority Enforcement Program'' that closely and clearly
reflects DHS's new top enforcement priorities. The program will
continue to rely on fingerprint-based biometric data submitted during
bookings by State and local law enforcement agencies but will, for the
most part, limit the circumstances under which DHS will seek an
individual in the custody of State and local law enforcement--
specifically, only when an individual has been convicted of certain
offenses listed in Priorities 1 and 2 of our new enforcement priorities
outlined above.
Pay reform for ICE ERO officers.--We will conduct an expeditious
review of personnel reforms for Immigration and Customs Enforcement
(ICE) officers engaged in removal operations, to bring their job
classifications and pay coverage in line with other law enforcement
personnel, and pursue regulations and legislation to address these
issues.
Extending the provisional waiver program to promote family unity.--
The provisional waiver program we announced in January 2013 for
undocumented spouses and children of U.S. citizens will be expanded--to
include the spouses and children of lawful permanent residents, as well
as the adult children of U.S. citizens and lawful permanent residents.
At the same time, we will clarify the ``extreme hardship'' standard
that must be met to obtain the provisional waiver.
Supporting military families.--We will work with the Department of
Defense to address the availability of parole-in-place and deferred
action, on a case-by-case basis, for the spouses, parents, and children
of U.S. citizens or lawful permanent residents who seek to enlist in
the U.S. Armed Forces.
Increasing access to U.S. citizenship.--We will undertake options
to promote and increase access to naturalization and consider
innovative ways to address barriers that may impede such access,
including for those who lack resources to pay application fees. To
enhance access to U.S. citizenship, we will: (i) Permit the use of
credit cards as a payment option, and (ii) enhance public awareness
around citizenship. USCIS will also include the feasibility of a
partial fee waiver as part of its next biennial fee study.
Supporting U.S. business and high-skilled workers.--Finally, DHS
will take a number of administrative actions to better enable U.S.
businesses to hire and retain qualified, highly-skilled foreign-born
workers. For example, because our immigration system suffers from
extremely long waits for green cards, we will amend current regulations
and make other administrative changes to provide needed flexibility to
workers with approved employment-based green card petitions.
Overall, the Executive Actions the President announced last week
will not only bolster our border security, they will promote family
unity, increase access to U.S. citizenship, grow and strengthen the
competitiveness of the U.S. economy, and create jobs, particularly in
the high-skilled labor sectors.
Again, the President views these actions as a first step toward the
reform of our immigration system and he continues to count on Congress
for the more comprehensive reform that only legislative changes can
provide. In the mean time, we will use our Executive authority to fix
as much of our broken immigration system as possible.
I look forward to answering your questions.
Chairman McCaul. I thank the Secretary.
The Chairman recognizes himself for 5 minutes for
questions.
I would have to echo again, in my opening statement, there
is a right way to do this and a wrong way. Obviously, I
disagree with the President's approach in this case. Presidents
Reagan and Bush worked with the Congress. Congress passed
legislation that the Presidents were implementing--a very
strong distinction from the case that we have today.
My question--I have several questions. One, first, is the
President said over 20 times that he did not have the legal
authority to do this, to take this Executive Action, and that
this is not how a democracy works. Do you agree with that prior
statement?
Secretary Johnson. Chairman, I know from 30 years as a
lawyer that when someone paraphrases remarks from somebody I
want to see the full Q&A, I want to see the full context to
know exactly what the person said.
I have looked at various excerpts of remarks by the
President concerning his legal authority to act, and I do not
believe that what we have done is inconsistent with that. In
fact, we spent a lot of time with lawyers, and we spent a lot
of time with DOJ's Office of Legal Counsel. They wrote what is,
in my judgment, a very thoughtful 30-page public opinion on the
available legal authority to act to fix----
Chairman McCaul. I have no doubt about your actions after
the election on this issue, but I will say I will be happy to
provide you with the written statements that I have personally
read to your office. It is confusing, and it poses a bit of
hypocrisy, I think, to the American people because then, after
the election, he reversed his course. After the election, he
says that now he does have the legal authority to move forward.
So who should we believe--the President before the election
who said he didn't have legal authority to take this action or
the President after the election who says that he does have the
authority to take this Executive Action?
Secretary Johnson. Congressman, what I know is we spent
months developing these reforms, and we spent a lot of time
with lawyers--very close consultation with lawyers. There were
some things that they told us they thought we did not have the
legal authority to do, which is reflected in the OLC opinion,
and there are things they told us very clearly that we did have
the legal authority to do.
The analysis was very thoughtful, very time-consuming, and
very extensive. I am satisfied, as a lawyer myself and the
person who has to come here and defend these actions, that what
we have done is well within our existing legal authority.
Chairman McCaul. Note, I have no doubt with respect to your
integrity, but I think the timing of these statements makes it
look more political to me, that this is a political decision
rather than a policy decision. I know you have run this through
all the legal traps, but I think that what we are concerned
about are these prior statements that he didn't have legal
authority and now he does. So perhaps he wasn't following the
correct legal advice at one juncture or the other.
Did he get the right political or legal advice before the
elections or after? Because he has changed his tune on this,
and I think that is what is so confusing to Members of Congress
and the American people about the authenticity of this
President's decision.
Secretary Johnson. Well, you refer to timing. I originally
received an assignment to look at our authority to take
Executive Action in the spring, and we began to develop reforms
in the spring. We were urged by many in Congress to wait, and
so we waited until the summer. We got to the summer; we were
urged then to wait till late summer, which we did.
Once we knew the Speaker was not going to be able to
marshal the votes in the House of Representatives for reform,
we decided we were going to act in late summer. Then we were
urged to wait till after the mid-terms, which we have done.
So we have waited a considerable amount of time, more
than----
Chairman McCaul. My time is limited. I know you have, but
it has undermined our Constitutional principles and our
democracy by bypassing Congress.
He also stated earlier that this could lead to a surge in
more illegal immigration. Do you agree with that statement by
the President?
Secretary Johnson. No. In fact, we prioritize recent
illegal migrants. We prioritize those who came here illegally
after January 1, 2014.
I intend to highlight that fact wherever I go. In fact, I
am going to our new detention facility in Dilley, Texas, week
after next to highlight the fact that we have expanded our
detention capability and recent arrivals illegally are
priorities for removal. I intend to go to the country of Mexico
to work with them on their own interdiction efforts.
So, wherever I go, I intend to highlight the fact that
these new reforms prioritize recent illegal entrants.
Chairman McCaul. Again, I just look at history. In 1986,
the amnesty law was passed, and it led to a wave of illegal
immigration. I look at DACA. I had 60,000 children,
unaccompanied, crossing my border in Texas through the Rio
Grande Valley sector.
As a result of DACA, you can't deny that the traffickers
are going to message this, now this Executive Action, and
exploit it. I have had high-level people in the State
Department tell me this. They are worried about this being
taken down to the Central American countries and exploited, and
we are going to see a surge and a wave of illegal immigrations.
I am telling you, it is going to happen. This Department
needs to be ready for that, to protect the Nation from it,
because it is coming. In my judgment, there is no question
about it.
The last question is on fraud. Twenty percent of DACA
applications are denied as fraudulent. We saw that after 1986.
The 1993 World Trade Center bomber, one of them, had fraudulent
documentations exploiting the 1986 amnesty law.
What are you going to do to verify that these people are
not fraudulently entering the country, including what could be
security threats to the country?
Secretary Johnson. Congressman, that is something that I,
too, am concerned about. Fraudulent applications have the
potential to undermine the whole process. So, in the
implementation, in the planning for the implementation, I want
to be sure that we take a hard look at best practices to avoid
fraudulent applications, fraudulent misuse of the program. That
is a priority of mine.
Chairman McCaul. Well, we look forward to working with you
on that.
With that, now the Chairman recognizes the Ranking Member
for questions.
Mr. Thompson. Thank you, Mr. Chairman.
Mr. Secretary, there are striking similarities between
President Obama's Executive Action and those similar actions
taken by President Reagan and President George H.W. Bush on
addressing this.
Your statement to this committee is that the Department of
Justice has provided authority by which the President is
acting. Are you comfortable with that? Or did you participate
after the issuance of that authority in the development of a
recommendation to the President?
Secretary Johnson. Yes, sir.
Let me add this. Whenever I assess a legal question, both
as a lawyer for the Department of Defense and now as a Cabinet
Secretary, and the viability of a legal issue, I welcome a
thorough opinion like the one we have from OLC, but I also ask
myself, could I defend that action before a committee of
Congress if called upon to do so? I am fully comfortable that
we have the legal authority to push forward these reforms in
particular.
Specifically with regard to deferred action, that is an
authority that Presidents have used for decades, as you have
been pointed out, in various different forms. That is noted in
the OLC opinion. So I am fully comfortable that deferred action
is an inherent Executive branch authority that can and should
be used from time to time, and we have done so here.
Mr. Thompson. Well, I would like to add to that, in those
other actions, Congress had not moved forward, and that was why
President Reagan and George H.W. Bush did pursue the Executive
Order route, because of the inaction of Congress.
So, while there are differences of opinion, I don't think
there is a question that we have not done our job as Members of
Congress, and the problem gets worse. Those 11 million people
who are here we have to address.
Another issue that I am concerned about, Mr. Secretary: The
Department's Unity of Effort. How will the Southern Border
campaign address the challenges around that?
Secretary Johnson. The Southern Border campaign strategy
that we are developing is an initiative to bring to bear all of
the Department's resources in a particular region of the
country on border security. We are, in my judgment, too
stovepiped in that approach. CBP ICE, CIS, FEMA, the Coast
Guard, we are too stovepiped, and we need to bring a more
comprehensive strategic approach to it.
So what we are doing is creating two regional task forces--
Joint Task Force West, Joint Task Force East--to focus on
maritime border security in the Southeast, to focus on border
security in the Southwest. I expect to announce the new leaders
of those task forces very soon, and we are developing a time
line for getting this done.
I issued, as part of these various directives here, a
directive devoted toward the Southern Border campaign strategy
and set forth here what the goals and lines of effort are to
be.
As you know, I think we have received a lot of bipartisan
support for this effort, and I intend to move forward with it.
Mr. Thompson. A comment has been made about the number of
undocumented children coming in recent years. Your Department
requested supplemental funding to address the needs to work
with that. Congress did not give you the money.
Can you continue to maintain the level of support to
address that issue if Congress continues to refuse to give you
the money necessary to do that job?
Secretary Johnson. It will be very difficult.
We have as part of our fiscal year 2015 budget request a
request for an additional $750 million. Most of that will go to
expanded detention capability and resources. We set that up in
response to the spike in illegal migration last summer, and we
want to maintain that and we want to add to it.
So I referred to the new detention facility in Dilley,
Texas, a moment ago. That is a capacity for up to 2,400 spaces.
We need to pay for that. But it is a vital aspect of our
Southern Border security, in my view.
Frankly, I am disappointed that the Congress has not
supported us in that vital border-security effort. I hope the
Congress will act to fund that and to fund the expanded
flights, the repatriation, that we have developed since last
summer. We need to pay for these things. I know every Member of
this committee wants to support and enhance border security, so
I am urging that Congress act on my request so we can pay for
it.
Mr. Thompson. I yield back, Mr. Chairman.
Chairman McCaul. The Chairman recognizes the gentleman from
Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Secretary, what do you project to be the number of
people coming across the border illegally this year?
Secretary Johnson. The number of people crossing the border
illegally each year?
Mr. Smith. Yes. Total number this year, what do you
project?
Secretary Johnson. Fiscal year 2014, I believe that total
apprehensions, which are an indication of total attempts to
cross the border illegally, is about 479,000, 477,000.
Mr. Smith. How many people will succeed in actually
entering without being apprehended, would you guess?
Secretary Johnson. There is a calculation that is something
in excess of that number. You add, as I am sure you know,
apprehensions plus turn-backs plus what we call got-aways, and
you get an estimate for total illegal migration.
Mr. Smith. Right.
Secretary Johnson. I believe--but I would be happy to
provide this number to you, what our Border Patrol's best
estimate is--but I believe it is some percentage in excess of
the 477,000, 479,000.
Mr. Smith. Right. That is what I have heard. Over half a
million people will succeed in coming into the United States
illegally this year.
If you were to succeed in achieving your goal of
operational control of the border, what would you like to get
that number down to? From half a million to what?
Secretary Johnson. Well, very clearly, sir, I would like to
see that number come down. In fiscal year 2000, we had 1.6
million apprehensions----
Mr. Smith. Right. If I may interrupt you for a minute, what
are your metrics in determining whether the border is secure or
not?
Secretary Johnson. Well, the Border Patrol has metrics, and
I have asked that they improve upon that. I recently issued a
directive----
Mr. Smith. Right.
Secretary Johnson [continuing]. To better define our border
metrics and how we should define----
Mr. Smith. Are there any metrics----
Secretary Johnson [continuing]. Border security. So that is
a work in progress, sir.
Mr. Smith. So you don't have the metrics today to determine
whether the border is secure?
Secretary Johnson. The Border Patrol does have metrics,
which I believe I have shared with various Members of this
committee. I have asked that they refine that, and they are in
the process of doing that.
Mr. Smith. Okay. So, again, I don't think that we have the
metrics we need to determine whether the border is security or
not.
Let me read a sentence from page 3 of your statement today.
``Our Executive Actions emphasize that our border is not open
to future illegal immigration and that those who come here
illegally will be sent back unless they qualify for some form
of humanitarian relief under our laws.''
Is it true, though, that the Department of Homeland
Security is already releasing illegal immigrants from ICE
custody or not?
Secretary Johnson. I am sorry. What was the last part of
that question?
Mr. Smith. Is the Department releasing illegal immigrants
now from ICE custody instead of sending them home?
Secretary Johnson. I believe that we have a number of those
who are released on bond, if I understand your question.
Through a directive, I recently asked ICE to have a higher-
level approval authority for when that happens.
Mr. Smith. But, again, to put that in simple language, ICE
is releasing individuals who are in the country illegally,
which is contrary to your statement that they would be sent
home.
It also seems to me contradicting your statement is the
fact that very few individuals who have entered the country
illegally who have not, in your terms, committed other serious
crimes are going to be sent home. It is going to be a very,
very small fraction; it may be 1 or 2 percent.
So I don't think your statement here is true, to say that
those who come here illegally will be sent back. It is actually
a very small subset of those who come into the country
illegally.
Secretary Johnson. Well, let me say two things, sir.
During the summer, we dramatically reduced the repatriation
time for adults from 33 down to 4 days.
Mr. Smith. Yeah.
Secretary Johnson. We have built added detention space for
family units, which I am hoping this Congress will support.
Mr. Smith. That is nice, but that is not answering my
question. Once again, you are not going to be sending people
back home just because they are in the country illegally. In
fact, I think you have just admitted ICE is already releasing
individuals who could be returned home but are not being
returned home.
Furthermore, I think you are also releasing individuals who
have been convicted of crimes in the United States and putting
them back out on our streets and in our communities.
Do you want to estimate how many thousands of people are
being released who are criminal aliens? In the last several
years, I think it totaled 30,000 people. Do you have any idea
what it might be this year?
Secretary Johnson. The issue of release of those convicted
of crimes is one that I have focused on for the last several
months. So what I have directed to ICE is that there be a
higher-level approval authority for a circumstance when
somebody with a criminal record is released from immigration
detention on bond.
I have also directed that a release of somebody with a
criminal record should not occur because of fiscal constraints,
and we will find a way to pay for that.
Mr. Smith. I hope you can improve the situation because, as
I say, right now you are releasing criminal aliens and you are
releasing individuals who should be sent home. I don't think
that is the way our laws should be enforced.
Thank you, Mr. Chairman. Yield back.
Chairman McCaul. The Chairman now recognizes the gentlelady
from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Mr. Chairman and to the Ranking Member,
again, let me thank you for this hearing. This is the important
work of the United States Congress, is unbiased fact-finding.
Secretary, again, thank you for your service and the
importance of your related service in the Department of Defense
and, as well, your knowledge and work with the U.S. Department
of Justice.
I, frankly, believe that we can clarify the President's
comments, and he was, in fact, extremely consistent. I have a
series of questions.
As I understand the Executive Order, it does not confer
immigration status, nor does it confer a pathway to
citizenship. Is that correct?
Secretary Johnson. Correct.
Ms. Jackson Lee. In my interpretation, the President's
remarks over the years has been his lack of authority to confer
immigration status or citizenship--my interpretation, but I
think it would be documented by his words. You are telling us
today that in the Executive Order you nor the President has
done that.
Secretary Johnson. Deferred action does not grant legal
status in this country.
Ms. Jackson Lee. Or a pathway to citizenship.
Secretary Johnson. Or a green card or a pathway to
citizenship.
Ms. Jackson Lee. Let me move on, Mr. Secretary, to put into
the record these words: ``A comprehensive approach [to
immigration reform]''--and that is in parens--``is long
overdue, and I am confident that the President, myself, and
others can find common ground to take care of this issue once
and for all.'' Now, those were the words of Speaker Boehner,
which I took literally, in 2012.
To date, this Congress has not placed--this House has not
placed on the floor of the House one single immigration bill
that responds to what I thought were welcoming words by the
Speaker. We have not had an up-or-down vote.
In this committee, which I want to congratulate, the
Chairman and the Ranking Member have worked in a bipartisan
manner, my subcommittee Chairwoman and myself, and we have
passed H.R. 1417, a border-security legislative initiative. It
has never seen a day on the floor of the House to provide an
up-or-down vote.
My questions and concerns would be our interpretation.
President Reagan signed into law in 1986 a bill that many
people tried to muffle their words but they use the word
``amnesty.'' I would make the argument that President Reagan
saw a humanitarian crisis and decided to act. In the Phoenix
case in 2012, Justice Roberts said that Presidents, in addition
to the Executive Order, have a right to humanitarian relief.
So let me pursue this questioning regarding the DACA and
the issue that this may work to cause border crosses as a
result of this announcement.
Could you just quickly point out that DACA relief deals
with existing persons here in the United States? One other
aspect is to expand the time frame from 2 to 3 years. Could you
quickly answer that?
Why don't I just give you this other question so that we
won't be delayed with respect to the other question?
I have always thought Secure Communities have had a legal
and political issue. You have streamlined Secure Communities.
Let me say that my law enforcement officers locally have said
it is problematic. So, in your prioritization of terrorists and
others, you have streamlined that.
I would like to also indicate in your new facility that I
am very interested in in Dilley, Texas, that it will be
accommodating and with the right kinds of resources for family
and children.
If you would answer those questions, Mr. Secretary.
Secretary Johnson. Yes, ma'am.
The current DACA program is for those who have been here
since June 2007, which is almost 7 years--over 7 years. You
have to have been here over 7 years, come here under age 16,
and have been born after 1981.
We revised the criteria by rolling back the cut-off from
2007 to 2010, we removed the birthday limitation from post-1981
to any time, and we have made the eligibility for the temporary
period 3 years instead of 2 years.
With regard to the Dilley facility that we are opening up,
I have sent my own staff, my own lawyers, down there to ensure
that the conditions are adequate for family units. That is
something that I am committed to ensuring.
Ms. Jackson Lee. Secure Communities that you have
streamlined, which have really rounded up mothers and fathers
and people who have are no threat to the United States of
America.
Secretary Johnson. I support the goal of Secure
Communities. The goal of Secure Communities is to get at
criminals so they can be put in removal----
Ms. Jackson Lee. Absolutely.
Secretary Johnson. The program, as you know, was becoming
legally and politically controversial, mayors and Governors
signing laws and executive orders prohibiting their law
enforcement from working with ours on this. So I want to fresh
start so that we can better enforce public safety and removing
criminals.
Ms. Jackson Lee. I thank you.
Mr. Chairman, as I yield back, I just want to say that, in
an article in our local newspaper, a mother who had used a
nanny for a number of years who had been in this country for 13
years, dependent, as many mothers across America are, on child
care in the house, she was celebrating--not politically,
Democrats, Republicans--the opportunity for her nanny to become
in some way statused to stay in this country and to do good
work and to protect her children.
I yield back.
Chairman McCaul. The Chairman recognizes Mr. Rogers from
Alabama.
Mr. Rogers. Thank you, Chairman.
Thank you, Mr. Johnson, for your service and for being
here.
Earlier this year, you testified before this committee when
we had a bunch of younger people coming across the border
illegally. During that hearing, I asked you, when we were
talking about the reason why they wouldn't be removed within 24
hours like we do adult illegal aliens coming across the border,
you made the point of saying, statutorily, the Government is
required to allow these children to go through or these younger
people to go through a hearing process and that that had to be
complied with.
My inquiry to you was: Aren't these exigent circumstances?
You said yes. I said, well, under those circumstances, can't
the President write an Executive Order that would allow you to
go ahead and remove those younger people like we do adults? You
said the President doesn't have that authority to ignore a
statute by Executive Order.
Isn't it true that our current statutory law requires that
these people that are covered under this Executive Order be
removed from the country?
Secretary Johnson. I recall that exchange, and I recall
that the particular words, ``extraordinary circumstances'' or
``exigent circumstances,'' whatever was in the law, could not
be read as broadly as to permit voluntary departure and
basically obviate the entire statute. That was the reading of
the statute that I had at the time.
I do not believe, to the extent this is your question, that
that is inconsistent with anything we have done and announced
week before last.
Mr. Rogers. I disagree with you. The statue is very clear
at present that these illegals who are in this country are to
be removed once they are located.
My next question: You talked about how the people are going
to be defined under this Executive Order, by being here a
certain number of years or the age or whatever. How do you
determine that how they are presenting themselves is accurate?
For example, if they say, ``I have been here 7 years,'' how
do you get them to prove it, and how do you know that the way
they prove it is valid?
For example, if they say, ``Well, I have been living at
this address for the last 7 years, and here is the power bill
over that period of time,'' and the power bill is in another
person's name, and they say, ``Look, but I rent from that
person,'' and that person says, ``Oh, yeah,'' and it is a
complete fabrication, how do you prove the residency is
accurate when they present themselves to you?
Secretary Johnson. Good question. The onus will be on the
applicant to demonstrate that they have lived in this country
continuously for the 5-year period. So the onus is on the
applicant to come forward with something that satisfies the
immigration officer, the examining officer, that they have, in
fact, lived in this country.
I do not believe that that will be as simple as, you know,
``Take my word for it.'' There will have to be some sort of
documented proof. That will be developed in the implementation
process by CIS.
Mr. Rogers. Well, I think you acknowledged from an earlier
question, this is an area that is going to be wrought with
fraud. All sorts of lies and exploitation are going to be
driven to this point. I think it is going to be impossible for
you all to be able to determine who, in fact, qualifies under
this very broad and illegal Executive Order.
Let me ask you this question: Do you think that the people
that are going to fall into this category are going to be able
to draw Medicare and Social Security and other public benefits?
Secretary Johnson. People who qualify for deferred action
are lawfully present, but they do not have a lawful status like
lawful permanent resident or citizen. One of the virtues, I
think, of accountability is you give people a work
authorization and then they pay taxes on the books. Part of the
taxes they would pay, as I understand it, would be a deduction
for Social Security.
Mr. Rogers. So the answer is, yes, they will be able to
qualify----
Secretary Johnson. They will not be eligible for public
benefits of the type that most people would receive----
Mr. Rogers. But Medicare and Social Security, they would.
Secretary Johnson. You would generally, as I understand it,
be eligible, if you are around long enough, to get back what
you put in, what you invested originally, but not----
Mr. Rogers. So the answer is yes.
Secretary Johnson [continuing]. The normal public benefits
we would think of.
Mr. Rogers. Well, participating in Medicare and Social
Security, both of which are struggling financially through
solvency, to have this added burden I think is irresponsible.
Now, you made a point about being given documentation for a
work permit. Is that accurate? This program will issue
affirmatively a document to an illegal saying they have a legal
status of some sort?
Secretary Johnson. As a separate matter, those who apply
for deferred action can also apply for a work authorization,
which is not a green card. It is a separate form of work
authorization that the Secretary of Homeland Security has the
authority to provide.
Mr. Rogers. But it will be a legal status of some sort.
Secretary Johnson. They can be considered lawfully present
in the country, just like the DACA kids.
Mr. Rogers. Do you know how much it will cost for the
Department of Homeland Security to establish and carry out that
program of providing that documentation? How expensive will it
be for you?
Secretary Johnson. Well, the program will be fee-driven. An
applicant has to pay a fee. I believe that we are contemplating
that the fee be $460 per applicant, which is what it is for
DACA. USCIS is a fee-based organization. It pays for itself.
Mr. Rogers. Great. Thank you very much.
I yield back.
Chairman McCaul. Mr. Keating from Massachusetts.
Mr. Keating. Thank you, Mr. Chairman. Thank you for having
the hearing.
Thank you, Mr. Secretary.
The title of today's hearing is ``Open Borders: The Impact
of Presidential Amnesty on Border Security.''
Before this hearing gets too far, let me be very direct,
Mr. Secretary. Is this amnesty?
Secretary Johnson. No. No, in my judgment.
Mr. Keating. Not legally, and is it even functionally
amnesty?
Secretary Johnson. The current situation amounts to
amnesty. We want people to be accountable, to come out of the
shadows, get on the books, and pay taxes for the 3-year period
of deferred action.
Mr. Keating. Thank you, Mr. Secretary.
I have another question. Does this represent a permanent
solution, this Executive Action, in your opinion?
Secretary Johnson. No.
Let me say again, I would welcome the opportunity to work
with the Members of this committee who I know are interested in
immigration reform on both sides of the aisle. Unfortunately,
since I have been in office, we have not had a willing partner
in the House of Representatives.
But I continue to want to work with Members of this
committee and Members of the House and Members of the Congress
on a comprehensive immigration reform piece of legislation.
Because you are correct; this is not a permanent solution. But
it is in our existing legal authority to issue to fix the
broken system, and we feel that we had no choice.
Mr. Keating. Mr. Secretary, General Barry McCaffrey served
as a witness during a border-security hearing before this
committee in the last Congress, and he unequivocally said that
the lack of comprehensive immigration reform is a direct threat
to our National security.
Would you comment on that, please?
Secretary Johnson. Part of comprehensive immigration reform
that was passed by the Senate enhanced border security--more
resources, more technology, more surveillance. I support that,
and I agree with that. I am hoping that the Congress will act
on our pending request for added border security on the
Southwest Border in response to last summer's spike.
Border security is integral to National security. So I
agree with that, sir.
Mr. Keating. Okay.
I know that there are some limitations on what you can say,
and most of the Members of this committee have been briefed in
a Classified manner on this issue. But can you enlighten us and
the members of the public, too, as to some of the means that
have been implemented in terms of border security, particularly
use of satellites to a greater extent and use of military
assets that we have that we no longer need that can be
surplussed and used on the border?
Secretary Johnson. When I go down to the border, the
Southern Border, and I talk to our Border Patrol about what
they need, they almost always tell me more vehicles, more
surveillance, more technology.
We are moving in the direction of a risk-based strategy to
border security, homeland security, aviation security, because
we now have the capability to surveil high-risk areas of the
border. So we need to continue in that direction. We need more
technology. That includes aerial surveillance as well as mobile
surveillance on the ground and a number of other things.
We have made considerable investments, Congressman, over
the last 15 years, which has shown some good results, but I
believe that we can do better and we should continue to do
better in this regard.
Mr. Keating. I am disappointed we do not have a vote in the
House at this stage on the Senate bill or a bill like that.
But let me ask you another question, my last question. That
is, there was some discussion by Members that asked you
questions in terms of your ability to send people back. Can you
be clear about your fiscal resources to do that right now, what
you are capable of? Are you capable of sending everyone back?
If we are really serious about this, how much do we need to
fund your agency so that we can do what the Members of this
committee are asking you to do?
Secretary Johnson. Well, the answer to that question is
reflected in our current budget request.
Let me say this. I know that there are some contemplating
some form of short-term CR for the Department of Homeland
Security to get us to March. That is, in my judgment, a very
bad idea for Homeland Security, because during that period of a
CR we cannot engage in new starts. We have some Homeland
Security priorities that need to be funded now.
For example, we are back in a Presidential election cycle.
I cannot hire new Secret Service agents until I get an
appropriations bill passed by this Congress, not another CR for
a couple of months. I cannot continue to fund our enhanced
detention capability in Texas with another CR that gets me to
March.
I need the help of Congress to support and build upon
border security, which I believe all of you support. So I am
urging that we act on our current appropriations request now
for the purpose and for the sake of border security and
homeland security.
Mr. Keating. Thank you, Mr. Secretary, for those direct
answers.
I yield back.
Chairman McCaul. The Chairman recognizes Mrs. Miller from
Michigan.
Mrs. Miller. Thank you very much, Mr. Chairman.
Good morning, Mr. Secretary. I appreciate your attendance
here this morning.
Obviously, there is a huge divide, certainly in Congress
and I think out there in the heartland as well, about whether
or not this is a Constitutional overreach by the President.
Just listening to your testimony and I read through your
testimony last night and hearing the answers to some of the
questions, you obviously had a very heavy, heavy, heavy
reliance on the OLC's opinion, their 33-page opinion that they
issued in here through Mr. Holder's Department of Justice.
I wrote a note when you said that they were very, very
thorough, but yet it seems to me that the questions that you
did ask them were specifically tailored. The three questions
that you asked the OLC were very specific in nature. Perhaps
there were some questions that you could have asked that you
did not.
But I would just--could you tell us the process in which
you actually asked these three specific questions of the OLC?
Because I see some of the States are going to be suing. I am
sure this is going to be a question that is probably determined
by the courts, and your department had such a heavy reliance on
them.
Secretary Johnson. Well, I know from my days at the
Department of Defense, and now, that the way we typically work
with OLC is to put to them specific questions. Do we have the
authority to do X? Do we have the authority to target XYZ
military objective, for example? So we developed the two or
three most significant questions that would be part of this
Executive Action package to be put to OLC for them to consider.
They came back with this very thorough opinion. I will say
that, as a lawyer myself, and as someone who has been a lawyer
for a Government agency, I am fully comfortable with what is in
here because I know that at the end of the day I am going to
have to be the one here to defend it.
Mrs. Miller. Well, if I could, in 2012, when this
administration created the DACA policy, there is nothing that
we could find of any opinion from the OLC regarding that. It
just would seem to be sort of a glaring oversight from there.
Is there such a memo? If there is such a memo, I guess we would
like to see that.
Secretary Johnson. I can only speak to 2014, and we wanted
to be thorough, so----
Mrs. Miller. But certainly as you were looking at this you
would have asked OLC, was there ever a memo in regards to DACA?
You never asked that question?
Secretary Johnson. I am not aware of one. Based on
everything I have asked and been told, I am not aware of one. I
have not seen one. I wanted to be thorough this time around,
though.
Mrs. Miller. Yeah. We think there was a glaring omission
about that as well. Again, in regards to the OLC, and this will
be determined in the courts, I think, since, I mean, I
certainly believe this was a Constitutional overreach by this
administration. As I say, it appears that some of the States
are going to court on that.
I was also taking notes here, Secretary, as you mentioned
about the fees, a $460 fee. I did some quick math, it is
probably not right, but times 4 million, $1.84 billion. I am
just wondering because, again, the OLC is saying you need to do
it, guarantee it in an individualized case-by-case review, is
what they are saying. So some of the questions even this
morning were talking about the limited amount of resources that
you have.
So you are going to do 4 million case-by-case reviews. How
in the world are you going to pay for this? I mean, really, is
that going to be enough? I mean, right now you have a couple of
dozen field stations. I am not quite sure of the mechanics of
actually doing a case-by-case review. I think that will be such
an important, critical component for the Department so that you
are not just doing a free-for-all and just rubber stamping and
really taking a look at all of this. So how do you envision
that all unfolding as you do a case-by-case review of over 4
million individuals?
Secretary Johnson. Well, we have an implementation period,
a start-up time of 6 months. DACA was 60 days. We determined
that for this one we needed 6 months to make sure that we get
it right. We know from the DACA experience that the program, if
the fee is set at the right level, will pay for itself. So the
fee for DACA was $460 per applicant, and that is the same fee
that we will be charging here.
With regard to the number 4 million, let me say this: 4.1
million is the estimated potential class of those who would be
eligible. Not all of those will come forward, as the DACA
experience shows. The estimated potential class of DACA kids is
over a million, but the number of those who are actually
enrolled is somewhere about 600,000 or 700,000. Then of those
who come forward, some will not qualify because they didn't
survive the background check or for some other reason; they
didn't establish proof of living here for 5 years. So the
number 4.1 is the estimate of the total potential class, but
not all of those will be enrolled in the program.
Mrs. Miller. Thank you very much. I think my time has
expired here.
Thank you, Mr. Chairman,
Chairman McCaul. Thank you.
The Chairman recognizes Mr. Barber from Arizona.
Mr. Barber. Thank you, Mr. Chairman, for convening this
hearing.
Thank you, Mr. Secretary, for being with us today. I want
to start by just saying how much I appreciate, and I think I am
joined by other Members on both sides of the aisle of this
committee, how much I appreciate the forthrightness with which
you approach the questions and the concerns that we have and
the leadership you have provided to the Department over almost
the last year.
As you know, Mr. Secretary, you visited my district within
a month of your appointment, your confirmation, and you saw
first-hand and you heard first-hand from people who live along
the border, work along the border, what their main issue is.
They are concerned about people coming here illegally seeking
work, but they are even more concerned about the traffic of
drug smugglers and the potential violence that comes with them.
That is one of the reasons I cosponsored, along with many
Members of this committee, the Border Security Results Act,
which passed unanimously here--it is important to stress
unanimously in this committee--and has yet to be brought to the
floor. I also cosponsored with almost 200 other Members H.R.
15, a bipartisan bill that would include the Border Security
Results Act and the immigration provisions of the Senate bill
which bipartisan passed the Senate.
I have said from Day 1 that Congress needs to act, and we
have failed in our responsibility to act to secure the border
and to fix the broken immigration system. Because of that
failure, unfortunately Executive Action has been taken. I
believe it should be done in concert with Congress, but we have
failed on our side of the bargain. I fully support the McCain-
Flake bill which is sitting there ready for us to take up.
Could you, Mr. Secretary, initially my first question is,
could you address how the Executive Action comports with the
McCain-Flake bill, particularly as it regards both border
security and immigration? I know it is not comprehensive, it
can't be. But to what extent was that bill a template for
action that can be taken and must be taken to secure the border
and to fix the system?
Secretary Johnson. Well, the Executive Actions that we have
taken are no substitute for S. 744, which does a number of
things, including an earned path to citizenship. That is what
is contemplated in the bill. We do not have Executive authority
to provide an earned path to citizenship. We do have Executive
authority to provide deferred action for those who have been
here for years, similar to the bill, who have not committed any
crimes and who have basically become integrated members of the
American society, to offer them the opportunity to be
accountable. That is not citizenship. That is not lawful
permanent residence. It is simply you are deemed lawfully
present in the country for a period of time.
We also are, through Executive Actions, enhancing border
security in a number of ways. But, again, border security is
something that is not cost-free. So we have reprioritized
recent illegal entrants, which we plainly have the authority to
do, but I need help with resources. I need help on the Southern
Border in Arizona, in Texas, New Mexico, for added detention
capability, added surveillance capability, added vehicles,
added equipment, and I am hoping the Congress will support me
on that.
I received your letter about the Eastern Border along
Arizona, and I plan to, if you will have me, come back early
next year to Arizona. I owe the ranchers another visit. I want
to come back to Arizona now with the benefit of a year's
experience in the job to talk more about border security and
see what we can do.
Mr. Barber. I appreciate your willingness to come back and
look forward to having you there.
Let me just focus in my remaining time on the issue of
border security. I think the answers, from my experience,
having worked on this issue for Congresswoman Giffords and in
my own right, is pretty straightforward: Border Patrol Agents
at the border, not 10, 15, 20 miles back under the defense-in-
depth strategy, which I think has failed in that area; more
horse patrols in the rugged territory; aerostats that will
allow us to have radar looking down into the mountains to see
where the smugglers are coming from; more mobile surveillance
systems at the border. I hope that your task force that you
have established, the western task force, will look at these
strategic options and include stakeholders, such as ranchers,
business people, residents of the communities there, as well as
others, to make sure we get it right going forward. Thank you.
Secretary Johnson. Congressman, I can affirm for you, when
I talk to the Border Patrol myself the one thing they mention
always, aerostats. So I believe that is a border security
priority.
Mr. Barber. Thank you, Mr. Secretary.
Thank you, Mr. Chairman. I yield back.
Chairman McCaul. The Chairman recognizes the gentleman from
South Carolina, Mr. Duncan.
Mr. Duncan. Thank you, Mr. Chairman. Thanks for holding
this hearing.
It comes as no surprise that I disagree with the President
and what he has done with this Executive Action. It is not as
much the issue of immigration and dealing with undocumented
workers as it is what he actually did. I think he crossed a
line with the Constitutional separation of powers. But I hear a
lot of doublespeak in his speech and in the words that I have
heard today. I will give you an example. The President said in
his November 20 speech about this unconstitutional Executive
Action that, ``Undocumented workers broke our immigration laws,
and I believe that they must be held accountable.'' That is
directly from his speech. ``Felons, not families. Criminals,
not children. Gang members, not a mom who is working hard to
provide for her kids. We will prioritize, just like law
enforcement does every day.''
But in The Hill publication, May 2014, it documented that
DHS released 68,000 illegal immigrants with criminal
convictions. ``Immigration and Customs Enforcement officials
last year released 68,000 illegal immigrants with criminal
convictions.'' That comes from an end-of-year ``Weekly
Departures and Detentions Report.'' How do you reconcile, Mr.
Secretary, what the President said with the actions of the
agency?
Secretary Johnson. Well, with regard to those who are
released from immigration detention, this is something I have
worked on myself. First of all, there is a Supreme Court case,
Zadvydas v. Davis, which you may have heard of, which mandates
that after 6 months if the person is not going to be
repatriated in the foreseeable future, we have to let them go
unless----
Mr. Duncan. So why aren't we repatriating these people?
Secretary Johnson. Well, that is something that requires a
willing partner on the other end, which I have had
conversations with the State Department about to further
encourage countries to take these people back faster. But if I
may----
Mr. Duncan. We had a hearing in the Foreign Affairs
Committee about that last week, and countries should take
these. I mean, they are required to take these back. I didn't
mean to interrupt you.
Secretary Johnson. If I could finish my sentence, yes,
thank you. So a number of releases are mandated by law and
Supreme Court jurisprudence. A number of releases are ordered
by an immigration judge.
With regard to the instances where an immigration official
who works for me releases somebody with a criminal record, what
I have recently directed is that the approval for that be at a
higher level of the ICE field officer. I want to know that we
are applying a consistent standard to those circumstances
because they may jeopardize public safety. I have also directed
that a person should not be released because of reasons for
fiscal constraint, which is what we faced when we had
sequestration in fiscal year 2013. We will find a way to pay
for it if we believe somebody should not be released for
reasons of public safety.
Mr. Duncan. I think some reports came out, Mr. Secretary,
that sequestration really had nothing to do with the release of
folks last year. I could go back and find the documents.
Let me ask you this. At the end of the year of 2014, how
many criminal aliens have been released? What will your year-
end ``Weekly Departures and Detention Report'' show for 2014?
Secretary Johnson. I believe it is less than fiscal year
2013. Fiscal year 2013, I believe, was 36,000. I think the
number for fiscal year 2030 will be about 30,000, and I think
it should be lower.
Mr. Duncan. So about 30,000, plus or minus, criminal aliens
have been released?
Secretary Johnson. Pursuant to legal requirements, orders
of a judge, I believe it should be lower, which is why I have
enhanced the approval authority. I have raised the approval
authority for that.
Mr. Duncan. I think one of the biggest problems with
getting any kind of immigration issues passed through the
United States Congress is a lack of trust of the American
people in the administration to enforce the laws. They have
told me, and I know my colleagues have heard it on both sides
of the aisle, why would you pass another law when the
administration fails to enforce the current laws that are on
the books? Why pass another one that is not going to be
enforced either?
Then you hear about 68,000 criminal illegal aliens that
have been released, that further erodes the trust of the
American people. The American people want to see border
security. They want to see deportations. They want to see
enforcement of the law. When they see that 50 percent, 50
percent, 49 percent I will give you that, of the illegals in
this country are visa overstays, these are people that we are
not chasing a footprint in the desert. We know who they are. We
have got their name. They have had an interview at a consulate
or an embassy. They came here on a visa. We know who they are.
That is low-hanging fruit for enforcement.
So I ask you this: How many of the visa overstays are
granted immunity through the President's action? Any?
Secretary Johnson. Off-hand I don't know. I don't know the
answer to that. Congressman, I will say this, though. I would
like to see this Congress pass a bill. I would like to work
with Congress on passing a bill. The President has said that
would be his preference. The problem is we have no partner in
Congress.
Mr. Duncan. I think Congress can pass a bill when the
American people start regaining trust in the administration to
actually do their job and enforce the laws that are already on
the books. I yield back.
Chairman McCaul. Chairman recognizes Mr. O'Rourke from
Texas.
Mr. O'Rourke. Thank you, Mr. Chairman.
Mr. Secretary, I want to begin by thanking you for your
accountability. You mentioned that you have been before
Congress 13 times in the 12 months you have been here, 5 times
before this committee. Your responsiveness to our requests and
our questions and your commitment to transparency, I think
there is a long way to go still within the Department, but in
the last 12 months we have seen more transparency than we have
seen in years, and so I really appreciate that.
Through you I want to thank the President for this very
difficult decision that he made, a very imperfect decision by
its very nature, a temporary way to address some of the
fundamental problems that require a legislative response. But I
think the status quo is untenable. As you and others have said,
it amounted to effective amnesty, and we are going to gain some
accountability, and we are going to bring families and people
who are working in our communities out of the shadows.
In a community like mine, El Paso, where 25 percent of the
population are immigrants, more than 40 percent of the kids who
live in my community are raised by parents who are immigrants,
this is going to be a boon. It is going to make us more secure,
a city that is already the safest city in America today, and I
tell people not in spite of the number of immigrants who there,
but in large part because of them. So on behalf of the people I
represent, I want to thank you and I want to thank the
President.
I do, however, want to address an issue that Congressmen
Smith and Duncan brought up, and that is the release of
convicted criminals. Senator Cornyn and I wrote a letter to ICE
and have yet to receive a response, almost a month ago, with
important questions about the status of those who have been
released, where they are, how we improve our working with local
law enforcement so that our police and sheriff's departments
know when these criminals are released and are able to track
them and account for them. So I would just appreciate your
commitment to getting me and Senator Cornyn a response to that.
Secretary Johnson. One of the things I have directed when
it comes to releases of those with criminal records is that we
notify local law enforcement when that happens. I think that
should be done. I will personally look for your letter, from
you and Senator Cornyn, and make sure it is responded to
promptly if it hasn't been already.
Mr. O'Rourke. Thank you.
Secretary Johnson. But I will look to make sure. We have a
general rule of responding within 14 days to Members of
Congress.
Mr. O'Rourke. Mr. Secretary, I would like to make a point
and try to turn it into a question about the President's
response to our immigration system thus far. I feel like there
has been this implicit political bargain where there is going
to be stepped-up enforcement and deportations. I believe this
President has deported more people from this country than any
President prior, 2 million at this point, and unfortunately in
many cases that is breaking up families, which this current
action I think will help reduce. I think the bargain was that
in return we were going to be able to gain the trust of both
parties in Congress and be able to pass meaningful immigration
reform. That obviously has not happened.
So I am concerned about some comments that you have made
and the President has made about stepping up border security,
about prioritizing the deportation of recent arrivals. I spent
some time in Artesia, the family detention center there, which
really has effectively become a deportation machine. I think we
are short-cutting due process, and I think we threaten to
return families and have returned families and children into
some very dangerous situations. Certainly there are those who
should be deported, but certainly there are those who qualify
for asylum in our country, and I think we need to honor that
process. So when you mentioned the facility in Dilley, Texas, I
want to make sure in our effort to satisfy security concerns we
don't shorten due process for those.
Then when it comes to border security, you and others have
said the border has never been more secure. We are spending $18
billion a year, 20,000 Border Patrol Agents. In the El Paso
Sector, the average agent apprehends 4.5 people a year, not in
a week, not in a month, but for the entire year. So when we
talk about stepping up border enforcement and this Southern
Border Campaign Strategy, I would like to know what that means
for my community. Is that simply repositioning resources along
the border, as my colleague Congressman Barber said, moving the
Border Patrol up to the line of the border instead of being set
back, or are you asking for ultimately more Border Patrol
Agents, more walls, more of these militarization measures,
which I think show us that we have a problem with diminishing
returns right now. You mentioned 1.6 million apprehended in
2000, not even 500,000 this year. At what point do we have
enough security on the border?
Secretary Johnson. First of all, I have been to Artesia
myself. That facility there, it is being closed. I want to make
sure that we have adequate ability for effective attorney-
client communications. We made some enhancements there, but it
is being closed in lieu of a larger facility in Dilley, Texas,
as I mentioned earlier. I want to make sure that the conditions
of detention there are adequate and meet the appropriate
standards.
I believe that added detention capability on the Southern
Border, and some disagree with me, is essential to border
security, and it is essential to border security going forward
in the future. It is correct that apprehensions are way down
from where they were 15 years ago, resources are way up. But I
believe we can do better. So I am not going to sit here and
declare we have a secure border. We can do better. I think we
know how to do better. The Congress and the Executive branch
together can spend the time and effort to do better on border
security. We have made great strides, but there is more to do.
Our Southern Border campaign plan is not simply
repositioning assets. It is to bring a more strategic,
consolidated approach toward how we secure our border, bringing
to bear the assets across my Department, not in a stovepipe
fashion, but in a more coordinated way, region by region, so
that there is one person in the Southwest who is responsible
for bringing to bear all of the assets of my Department on
border security in Arizona, New Mexico, and in Texas.
Chairman McCaul. The gentleman's time has expired.
The Chairman now recognizes the incoming Chairman of
Government Reform and Oversight. Congratulations. Mr. Chaffetz.
Mr. Chaffetz. Thank you. I thank the Chairman for holding
this hearing.
Mr. Secretary, I thank you for being here. I hope you are
able to convey the love and gratitude for the men and women who
serve in the Customs and Border Patrol, the ICE Agents who put
their lives on the line every day for this country. We thank
them for their service.
My question for you, Mr. Secretary, is: What do you say to
someone who believes the President took action to change the
law?
Secretary Johnson. We did not change the law. We acted
within the law.
Mr. Chaffetz. Can you play the clip?
This is from November 25. This is the President in Nevada
talking about this.
[Video shown. President Obama: ``But what you are not
paying attention to is the fact that I just took an action to
change the law.'']
Mr. Chaffetz. So you say he didn't change the law, but the
President says he changed the law.
Secretary Johnson. We acted within existing law. We acted
within our existing legal authority. Listen, I have been a
lawyer 30 years. Somebody plays me an eight-word excerpt from a
broader speech, I know to be suspicious. Okay? That was very
nice.
Mr. Chaffetz. It says, I am going to read it back, ``Now,
you are absolutely right that there have been a significant
number of deportations. That is true. But what you are not
paying attention to is the fact I just took action to change
the law.''' So that is point No. 1.
Point No. 2, the way the change in the law works, and he
goes on. He is pretty clear, and he is the President of the
United States. This is why we have a hard time believing that
Homeland Security is doing the right thing. I think the
gentleman from South Carolina made a very good point.
Let me move to something else real quickly. You and I had
an interaction the last time you were here about these four
people with ties to a terrorist organization were caught
illegally crossing the border into Texas in September. You said
they would be deported. Did you deport them?
Secretary Johnson. No, not at this point.
Mr. Chaffetz. What is the disposition of those four people?
Secretary Johnson. Two are detained. The two others were
released by the judge. Not my preference. They were released by
the judge, and they fled to Canada, and they are seeking asylum
in Canada.
Mr. Chaffetz. So you told the world that you were going to
deport these four people with ties to a terrorist organization.
That is not what happened. Two of them were released----
Secretary Johnson. They are in deportation proceedings. An
immigration judge released two of the four, and they fled to
Canada. My intent is that they be deported, but two of them are
in Canada seeking asylum.
Mr. Chaffetz. Where did these two, where were they
anticipated going, and where did they actually go?
Secretary Johnson. I am not sure of their exact
whereabouts, sir.
Mr. Chaffetz. But they are currently being held in Canada?
Secretary Johnson. That is my understanding.
Mr. Chaffetz. Are you going to ask that they be brought
back to the United States?
Secretary Johnson. I don't generally get involved in
individual immigration cases.
Mr. Chaffetz. But these people had ties to a terrorist
organization.
Secretary Johnson. I think, as we talked about this last
time, there is some question about whether their affiliation is
with what one should consider a terrorist organization.
Mr. Chaffetz. It is a terrorist organization designated by
the State Department, correct?
Secretary Johnson. They are or were a member of the Kurdish
Workers Party.
Mr. Chaffetz. That is designated by the State Department as
a terrorist organization, correct?
Secretary Johnson. I refer you to the State Department.
Mr. Chaffetz. That is the accurate statement.
Mr. Secretary, this is the problem, you come and you say,
you tell the world that you are going to deport these four
people tied to terror. These are terrorists. You don't. They
get released. My understanding is they go to Arizona. They go
to the State of Washington. They cross illegally into Canada.
They each put up $25,000 bonds. Doesn't that beg a lot of
questions about what you are doing in deporting criminals?
These people have terrorist ties.
I am getting tired of the Democrats with this righteous
indignation saying that we can't find a Congress we can work
with. Well, the first 2 years of the Obama administration the
Democrats had the House, the Senate, and the Presidency, and
they did nothing on immigration. I sat on the subcommittee.
They brought Stephen Colbert in to testify. That is how bad it
was.
The country made a change. We actually passed an
immigration bill. It was my bill. Nearly 390 people voted for
it. It is as bipartisan as it gets. Worked on high-skilled
immigrants. Dealt with family-based visas. Took the per-country
cap from 7 percent to 15 percent. It went to the United States
Senate under Harry Reid. It had nothing happen to it. Nothing.
So I want to continue to work with this administration.
There is common ground that can be had. But the President and
the record is clear. When they had the chance with the House,
the Senate, and the Presidency, they didn't even introduce a
bill into the committee, let alone bring it through the
process.
I appreciate the time. Yield back.
Chairman McCaul. The Chairman recognizes Mr. Vela.
Ms. Jackson Lee. Mr. Chairman, may I offer something into
the record?
Chairman McCaul. Yes. The gentlelady is recognized.
Ms. Jackson Lee. Thank you, Mr. Chairman. There are three
articles or letters or statements emphasizing the approach of
the President in deporting felons and not families. One is from
the National Immigrant Justice Center, dated December 2, 2014;
from the American Immigration Lawyers Association, dated
December 2, 2014; and from the Southern Border Communities
Coalition and the ACLU, dated December 2, 2014. I ask unanimous
consent to submit these statements into the record.
Chairman McCaul. Without objection, so ordered.
[The information follows:]
Statement of Mary Meg McCarthy, Executive Director, National Immigrant
Justice Center
December 2, 2014
Chairman McCaul, Ranking Member Thompson, and Members of the
Committee on Homeland Security: Drawing upon our vast experience
working with children and families from Mexico and Central America,
Heartland Alliance's National Immigrant Justice Center (NIJC) submits
this testimony to demonstrate that the reason families and children are
coming to the United States is to escape violence and is not related to
the President's Executive Action. Pervasive violence and the absence of
the rule of law in Central America drive migrants to the United States
in search of safe haven.
While the President's Executive Action will provide security to
millions of families with deep roots in the United States,
unfortunately it puts those fleeing recent violence in Central America
at greater risk. NIJC welcomes President Obama's recent announcement to
expand eligibility for the Deferred Action for Childhood Arrivals
(DACA) program and to extend eligibility for deferred action to parents
of U.S. citizens and lawful permanent residents to allow them to
contribute to our communities and economy. This temporary relief should
allow the administration to refocus immigration enforcement on those
who pose a National security threat or risk to public safety,\1\ not
those who come to our borders seeking refuge.
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\1\ Memorandum from Secretary Jeh Johnson, ``Policies for the
Apprehension, Detention, and Removal of Undocumented Immigrants,'' Nov.
20, 2014, http://www.dhs.gov/sites/default/files/publications/
14_1120_memo_prosecutorial_discretion.pdf.
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This testimony will discuss lessons learned from the arrivals of
children and families from Central America during 2014, including the
root causes of migration, the need for greater due process protections,
and the need for improved accountability and oversight of the
Department of Homeland Security's (DHS) border screening process.
NIJC is an NGO dedicated to safeguarding the rights of noncitizens.
With offices in Chicago, Indiana, and Washington, DC, NIJC advocates
for immigrants, refugees, asylum seekers, and survivors of human
trafficking through direct legal representation, policy reform, impact
litigation, and public education. NIJC and its network of 1,500 pro
bono attorneys provide legal representation to approximately 10,000
noncitizens annually, including thousands of unaccompanied children.
NIJC is the largest legal service provider for unaccompanied children
detained in Illinois, conducting weekly legal screenings and legal
rights presentations, which provide an overview of the child's legal
rights and responsibilities in the immigration system, at nine Chicago-
area shelters. Through our direct legal services, we have heard of the
horrors that force children to leave their parents behind and make
treacherous journeys in hope of finding refuge in the United States.
i. violence forces children and families to flee central america
Growing violence and danger in home countries is the primary reason
children and families are fleeing their countries and seeking safety in
the United States. The majority of these new arrivals are from the
Northern Triangle countries of El Salvador, Guatemala, and Honduras,
are among the most dangerous countries in the world, particularly for
women and children. In 2011, El Salvador had the highest rate of
gender-motivated killing of women in the world, followed by Guatemala
(third-highest) and Honduras (sixth-highest).\2\ In addition, children
in these countries face pervasive violence, persecution, and abuse.\3\
El Salvador led the world in child murders in 2012 with 27 children
murdered per 100,000 population.\4\ Overall, the region has the highest
rate of child homicides in the world.\5\
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\2\ Geneva Declaration on Armed Violence and Development, Global
Burden of Armed Violence 2011, Oct. 2011, http://
www.genevadeclaration.org/fileadmin/docs/GBAV2/GBAV2011_- CH4_rev.pdf.
\3\ See e.g., Kids in Need of Defense (KIND)/Center for Gender and
Refugee Studies (CGRS), A Treacherous Journey: Child Migrants
Navigating the U.S. Immigration System, http://www.usccb.org/about/
migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf; U.S.
Conference of Catholic Bishops (USCCB), Mission to Central America: The
Flight of Unaccompanied Children to the United States, 2014, http://
www.usccb.org/about/migration-policy/upload/Mission-To-Central-America-
FINAL-2.pdf; Women's Refugee Commission, Forced from Home: The Lost
Boys and Girls of Central America, 2012, http://
womensrefugeecommission.org/forced-from-home-press-kit; United Nations
High Commissioner for Refugees (UNHCR), Children on the Run, 2014,
http://www.unhcrwashington.org/children/reports.
\4\ United Nations International Children's Emergency Fund
(UNICEF), Hidden in Plain Sight: A statistical analysis of violence
against children, Sept. 2014, http://files.unicef.org/publications/
files/Hidden_in_plain_sight_statistical_analysis_EN_3_Sept_2014.pdf, p.
36.
\5\ Id.
``One of those children is Alex, a 13-year-old boy and NIJC client who
was murdered for refusing to join a gang in Guatemala. A year after his
murder, his friend Oscar (pseudonym) fled to the United States to
escape gang violence. For the past two years, the same gang that killed
Alex had been threatening to kill Oscar if he did not join the gang.
Initially, the gang tried to force Oscar to do things he did not want
to do, like use drugs. As time went on, their efforts to force Oscar to
join the gang escalated, but Oscar could not go to the police for help
because the gang threatened to kill his family. Oscar decided to leave
after a friend told him that the gang had set a date and time to kill
him. He came to the United States to seek refuge with his father, who
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has lived in the United States for nearly 10 years.''
Oscar is one of many children targeted by gangs who cannot obtain
police protection because violence in these countries is perpetrated
with impunity. For instance, over the past 3 years, 48,947 people were
murdered in the Northern Triangle, where the total population is just
over 30 million inhabitants. Countries achieved convictions in 2,295 of
those homicide cases, representing a regional impunity rate of 95
percent for homicides over that 3-year period.\6\ In 2012, Honduras had
the highest homicide rate in the world with 90.4 homicides per 100,000,
El Salvador had the fourth-highest homicide rate with 41.2 homicides
per 100,000, and Guatemala had the fifth-highest homicide rate with 40
homicides per 100,000.\7\ Alliances between drug-trafficking
organizations and local gangs have increased the efficiency and
frequency of violence in this region.\8\ The DHS's own statistical
analysis has shown that children and families are fleeing the countries
in Latin American with the highest rates of homicides and the most
dangerous security conditions.\9\ Additionally, impoverished Latin
American countries with lower rates of violence and homicide, such as
Nicaragua, are not sending large numbers of children.\10\
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\6\ Chavez, S. & Avalos, J., The Northern Triangle: The Countries
That Don't Cry for Their Dead, INSIGHT CRIME--ORGANIZED CRIME IN THE
AMERICAS, April 2014, http://www.insightcrime.org/news-analysis/the-
northern-triangle-the-countries-that-dont-cry-for-their-dead.
\7\ United Nations Office on Drugs and Crime (UNODC), Global Study
on Homicide, 2013, http://www.unodc.org/documents/gsh/pdfs/
2014_GLOBAL_HOMICIDE_BOOK_web.pdf.
\8\ U.S. Conference of Catholic Bishops (USCCB), Mission to Central
America: The Flight of Unaccompanied Children in the United States, p.
4, November 2013, http://www.usccb.org/about/migration-policy/upload/
Mission-To-Central-America-FINAL-2.pdf.
\9\ See Tom K. Wong, Statistical Analysis Shows that Violence, Not
Deferred Action, Is Behind the Surge of Unaccompanied Children Crossing
the Border, CENTER FOR AMERICAN PROGRESS, 2014, https://
www.americanprogress.org/issues/immigration/news/2014/07/08/93370/
statistical-analysis-shows-that-violence-not-deferred-action-is-behind-
the-surge-of-unac- companied-children-crossing-the-border.
\10\ Id.
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ii. children and families fleeing violence are not included in the
president's executive action
Central American migration patterns are not tied to U.S.
immigration policy making. The relief provided by DACA is unavailable
to anyone who has entered the United States since January 1, 2010. The
qualifications for DACA, whether under the 2012 directive or the more
recent November 20, 2014 announcement, require continuous residence in
the United States for at least 5 years.\11\ Historic trends further
corroborate this argument. The increase in child migration to the
United States began in October 2011, more than 6 months prior to
President Obama's announcement of the DACA program. Furthermore, a
recent Federal court decision cited a steady increase over the past 8
years in the number of individuals with prior removal orders expressing
a fear of persecution.\12\
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\11\ U.S. Citizenship and Immigration Services, Consideration of
Deferred Action for Childhood Arrivals (DACA), October 2014, http://
www.uscis.gov/humanitarian/consideration-deferred-action-childhood-
arrivals-daca; Memo from DHS Secretary Jeh Johnson, Nov. 20, 2014,
Exercising Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children and with Respect to Certain
Individuals Who Are the Parents of U.S. Citizens or Permanent
Residents, http://www.dhs.gov/sites/default/files/publications/
14_1120_memo_deferred_ac- tion.pdf.
\12\ See Alfaro Garcia et al. v. Johnson et al., No. 14-cv-01775,
slip op at 18 (N.D. Cal. Nov. 21, 2014) (denying Government's motion to
dismiss and granting class certification).
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If a perceived change in immigration policy was fueling the current
migration, there would be comparable numbers of immigrant children from
other regional countries besides El Salvador, Guatemala, and Honduras,
but this has not been the case. In addition, the United States is not
the only country seeing an increase in refugees from these three
countries. The United Nations High Commissioner for Refugees (UNHCR)
has documented a 712 percent increase in the number of asylum
applications from Salvadoran, Honduran, and Guatemalan citizens to
Mexico, Panama, Nicaragua, Costa Rica, and Belize from 2008 to
2013.\13\ These numbers demonstrate that the current crisis is a
regional problem caused by country conditions in the sending countries,
rather than a perceived change in immigration policies in the United
States.
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\13\ UNHCR, Unaccompanied Minors: Humanitarian Situation at U.S.
Border http://www.unhcrwashington.org/children.
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iii. customs and border protection needs greater oversight and
accountability
NIJC and its partners have documented reports of abuses by Customs
and Border Protection (CBP) for years, most recently in two civil
rights complaints on abuse of children in CBP custody and the unjust
deportation ofindividuals with fear of persecution in their home
countries. These complaints demonstrate the need for greater oversight
and accountability of CBP.
In June of 2014, NIJC and several partner organizations filed a
mass complaint on behalf of 116 children who were abused and mistreated
while in CBP custody.\14\ The complaint documents how CBP agents
verbally and physically abused children in custody, denied access to
necessary medical care to children as young as 5 months old,
confiscated and withheld legal documents and personal belongs, and
strip-searched and shackled children in three-point restraints during
transport.
---------------------------------------------------------------------------
\14\ See Complaint to the Department of Homeland Security, Office
of Civil Rights and Civil Liberties and Inspector General, Re: Systemic
Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border
Protection, June 11, http://immigrantjustice.org/sites/
immigrantjustice.org/files/
FINAL%20DHS%20Complaint%20re%20CBP%20Abuse%20of%20-
UICs%202014%2006%2011.pdf.
``D.G. is a 16-year-old girl who fled to the United States from Central
America. Shortly after CBP arrested her, officials mocked her and asked
her why she did not ask the Mexicans for help. When they searched her,
officials violently spread her legs and touched her genital areas
forcefully, making her scream. D.G. was detained with both children and
adults. She describes the holding cell as ice-cold and filthy, and says
the bright fluorescent lights were left on all day and night. D.G.
became ill while in CBP custody, but when she asked to see a doctor,
officials told her it was ``not their fault'' that she was sick and
ignored her. CBP officials did not return all of D.G.'s personal
belongings when she was released.''\15\
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\15\ Id. at pp. 8-9.
D.G. is one of many children whose abuse was documented in NIJC's
complaint. These types of abuses occurred in clear violation of
standards on the treatment of children and American values. The volume
and consistency of the complaints overall indicates long-standing,
systemic problems with CBP policy and practices that require increased
training on working with children and improved oversight by independent
entities.
In addition, NIJC and nine other organizations recently filed a
civil rights complaint on behalf of nine men and women who were
unjustly deported by CBP Officers to countries where they faced
persecution.\16\ Under the 1951 Convention Relating to the Status of
Refugees (Refugee Convention) and the 1967 Protocol Relating to the
Status of Refugees (Refugee Protocol), the United States is required to
recognize as refugees anyone with a ``well-founded fear'' of
persecution in their home countries, to accord refugees certain legal
rights, and to refrain from returning them to countries where their
safety would be threatened.\17\ The United States ratified the Refugee
Protocol \18\ and in 1980, the United States enacted the Refugee Act to
ensure compliance.\19\ These obligations were also codified into the
CBP Field Inspector's Manual. Despite this, NIJC and its partners
across the country see many individuals who are either denied a chance
to express fear of return or are ignored, and consequently sent back to
places where their lives are threatened.
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\16\ See Complaint to the Department of Homeland Security, Office
of Civil Rights and Civil Liberties and Inspector General, Re:
Inadequate U.S. Customs and Border Protection (CBP) screening practices
block individuals fleeing persecution from access to the asylum
process, Nov. 13, 2014, http://immigrantjustice.org/sites/
immigrantjustice.org/files/FINAL%20DHS-
%20Complaint%20re%20CBP%20Abuse%200f%20UICs%202014%2006%2011.pdf.
\17\ ``No Contracting State shall expel or return (`refouler') a
refugee in any manner whatsoever to the frontiers of territories where
his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or
political opinion.'' Convention Relating to the Status of Refugees
[hereinafter ``Refugee Convention''], art. 33-1, 189 UNTS 150.
\18\ Although the United States did not sign the Convention, the
Protocol includes by reference the rights and duties set forth in the
Convention. Refugee Protocol art. 2 (``The States Parties to the
present Protocol undertake to apply Articles 2 to 34 inclusive of the
Convention to Refugees as hereinafter defined.'') The Protocol expanded
these rights and duties to all refugees, whereas the Convention only
applied to those displaced by the Second World War and its aftermath.
Hereinafter, this statement cites to specific articles of the
Convention when discussing the Protocol.
\19\ INS v. Cardoza-Fonseca, 480 U.S. 421, 433 (1987) (citing the
abundant evidence of an intent to conform the definition of ``refugee''
and our asylum law to the United Nation's Protocol to which the United
States has been bound since 1968).
``R.S.C. is a woman from Guatemala who sought protection in the United
States due to repeated persecution on account of her status as an
indigenous woman. R.S.C. was harassed, abused, and raped on four
occasions before fleeing her country for the first time in January
2014. She was deported twice from the United States and consequently
suffered additional persecution in Guatemala. The first time she came
to the United States, she tried to express her fear of return, but
Border Patrol agents told her, `Don't talk. These are all lies. Stop
speaking . . . All Guatemalans are telling the same lies.' Upon her
return to Guatemala, she was drugged, raped, and impregnated.\20\ She
returned to the United States in April 2014 seeking safety, and was
again denied an opportunity to express her fear of return and was
deported within days. She came to the United States for a third time
with her 8-year-old son in July 2014, and they were placed in detention
at the Artesia Family Residential Center in Artesia, New Mexico.
Because CBP previously deported R.S.C., she is legally barred from
applying for asylum and can only seek `withholding of removal,' a much
more limited form of protection with a higher burden of proof and no
guarantee of permanency. Her son, however, is eligible to apply for
asylum. As of the date of this writing, R.S.C. and her son remain
detained while her removal proceedings are on-going.''
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\20\ Supra note 16 at page 18.
R.S.C. is one of many who have been denied asylum protections due
to inadequate screening by CBP Agents.\21\ In addition to the nine
complainants in NIJC's complaint, six legal service providers in Texas,
California, and Arizona also provided statements showing that the
complainants' experiences are not isolated incidents, but symptoms of
systemic failures that result in permanent and life-threatening harm to
hundreds--potentially thousands--of asylum seekers.
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\21\ Bekiempis, Victoria, ``Is U.S. Customs and Border Protection
Kicking Out Refugees?'' Newsweek, Nov. 15, 2014, http://
www.newsweek.com/us-custom-sand-border-protection-kicking-out-refugees-
284433.
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iv. recommendations
Recent immigration from the Northern Triangle of Central America
has been driven by violence and persecution and without addressing root
causes in countries of origin, the trend that will likely continue. The
increase in recent arrivals at the border may appear correlated in time
with the availability of immigration relief for others with long-
standing ties in the United States, but no causation between new
arrivals and Executive Actions has been credibly established. Based on
its experience and expertise, NIJC makes four recommendations that urge
DHS to focus its attention on improvements at the border that promote
due process and respect for the dignity of asylum seekers, including
unaccompanied immigrant children:
(1) End family detention.--Because persecution is the main driver
of migration for mothers and children from Central America, DHS
should not use family detention as a deterrent nor signal that
asylum seekers will be swiftly deported. Families should
receive individualized custody determinations, particularly
once they have established a credible fear of persecution, and
be considered for alternatives to detention, including bond,
release on recognizance or orders of supervision, and
community-based alternatives.
(2) Improve training of CBP Officers to ensure their understanding
and compliance with existing law and procedure--including
directives in the agency's own manual--with respect to the
treatment of asylum seekers who are apprehended at the border
or a point of entry.\22\
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\22\ See 8 U.S.C. 1225(b)(1)(A)(ii); 8 CFR 235.3(b)(4); CBP
Inspector's Field Manual, supra, note 36, at 113-14.
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(3) Promote clear information domestically and abroad on the
parameters of recent Executive Action on immigration.--Instead
of seeking to deter asylum seekers from seeking safe haven in
the United States, DHS should focus its effort on providing
clear information through popular media in Spanish and
indigenous languages, on the eligibility criteria for deferred
action.
(4) Ensure that children are treated fairly and humanely at the
border.--CBP must ensure that children are not held in their
custody for more than 72 hours (and ideally not more than 24
hours) and promulgate binding short-term detention standards
that apply to those held in CBP facilities.
______
Statement of the American Immigration Lawyers Association
December 2, 2014
The American Immigration Lawyers Association (AILA) is the National
association of immigration lawyers established to promote justice,
advocate for fair and reasonable immigration law and policy, advance
the quality of immigration and nationality law and practice, and
enhance the professional development of its members. AILA has over
13,000 attorney and law professor members.
On November 20, 2014, President Obama announced a package of
reforms to the immigration system. AILA welcomes this plan which, for
the most part, provides critically-needed changes to many aspects of
our broken system. Almost 2 decades have passed since a major reform
was enacted to the country's immigration laws, and despite efforts in
recent years, Congress has been unable to complete the task. Though the
Senate passed a comprehensive bill in 2013, the House has not yet
passed any bills, including a border security bill that was passed by
the Homeland Security Committee. In the absence of legislation, it
would be irresponsible for the President to wait and do nothing while
American families, businesses, and communities languish under the
current system.
border security
The President's announcement calls for additional border security
measures at a time when the border has never been more secure. In the
past decade, the Department of Homeland Security (DHS) has deployed
unprecedented amounts of personnel, resources, and technology to secure
the Nation's borders. Last year, in our report ``Border Security:
Moving Beyond Past Benchmarks,'' AILA urged lawmakers to stop the
massive expenditure of resources on border security. AILA is
disappointed that the President highlighted the plan in the 2013 Senate
bill to add 20,000 more Border Patrol but offered no explanation for
such an incredible increase. Until DHS provides justification for the
need for such resources, this request for a dramatic increase in border
personnel appears to be an unnecessary and wasteful expenditure of
taxpayer resources.
AILA also opposes the planned surge in resources to the border that
began this summer in response to the spike in families and
unaccompanied children fleeing violence in the Northern Triangle in
Central America. The surge included a massive expansion in family
detention in gross violation of U.S. asylum and humanitarian law. It is
undeniable that the violence in Guatemala, Honduras, and El Salvador
has reached crisis proportions. Through AILA's volunteer project which
provides legal representation for hundreds of families now detained in
Artesia, NM, AILA has found that these families qualify for asylum at
extremely high rates. Immigration judges have rendered decisions in 10
asylum cases where the mothers and children were represented by AILA
attorneys, and in all 10 of those cases, the judges granted asylum.
America is not confronted with a border security problem but a
humanitarian crisis that affects the entire region. The crisis demands
a humanitarian response not a deterrence-driven, border lockdown.
In the coming weeks and months, there will almost certainly be
efforts to blame the continuing flow of unaccompanied minors and
families fleeing violence in Central America on the President's two
newly-announced deferred action programs (Deferred Action for Childhood
Arrivals and Deferred Action for Parental Accountability). Such claims
came during the summer despite the overwhelming evidence that what
drove the surge in families and children to our country was the
violence in those Central American countries. It is important to
recognize that the United States has not seen large numbers of refugees
from other extremely poor countries, such as Nicaragua, because
Nicaragua has not experienced the same levels of uncontrollable
violence.
Finally, the President's announcement, as of yet, includes nothing
to address the grave and long-standing concerns about the lack of
oversight and accountability of Border Patrol. Reports persist of
Border Patrol abuses--including the excessive use of force resulting in
civilian deaths at the border--deplorable detention conditions,
racially-motivated arrests, coercive interrogation tactics, and the
denial of access to asylum and the right to counsel. AILA recommends
that the committee turn greater attention to these problems that are
likely to grow more severe once DHS adds even more Border Patrol Agents
to the Southern Border.
amnesty and legal authority
The President's announcement has already engendered partisan debate
and controversy. Many have alleged that his actions amount to a grant
of amnesty. It is AILA's judgment that the President has acted well
within his legal authority and that the deferred action programs do not
constitute an amnesty. Unlike the 1986 amnesty President Reagan signed
into law, deferred action does not confer formal legal status to the
individual but merely a reprieve from immigration law enforcement,
specifically deportation. Moreover the grant is temporary, so those
granted the status could be at risk of deportation if the status
expires. Finally, deferred action, by itself, does not provide a path
to a green card or citizenship.
The Executive branch's authority to grant deferred action is
derived from the Federal immigration statute and regulations as well as
the long-standing principle of prosecutorial discretion used by every
law enforcement agency. It is common practice for law enforcement
agencies and their individual officers to decide how and to what extent
to pursue a particular case based on established priorities. A law
enforcement officer who declines to pursue a case against a person has
favorably exercised prosecutorial discretion. In a 1999 letter, 28
Republican and Democratic Members of Congress (including the Chair of
the Judiciary committee at that time, Lamar Smith) called for
prosecutorial discretion in immigration enforcement: ``The principle of
the prosecutorial discretion is well-established.''
Prosecutorial discretion ensures the smart use of finite
enforcement resources. DHS cannot possibly deport everyone who is
living unauthorized in the United States. Such a mass deportation is
not only completely unrealistic but also an unwise policy choice as it
would gravely fracture American society, negatively impact businesses,
and hurt the economy. For these very reasons, Republican and Democratic
leaders have spoken against the idea of deporting over 11 million
undocumented immigrants. DHS and every other enforcement agency must
choose priorities. Keeping America safe by focusing on those who
present real threats to our National security and public safety is the
right focus.
In the past 50 years, Republican and Democratic presidents have
designated various groups of people for temporary relief from
immigration enforcement by granting deferred action or using a similar
tool. In 1990, President Bush provided blanket protection from
deportation for up to 1.5 million unauthorized spouses and children of
immigrants, about 40 percent of the total unauthorized population at
the time. Other Presidents have provided temporary protection to
victims of domestic violence, the family members of military service
members, widows and widowers, as well as people from specific countries
or regions such as Cuba, Haiti, Southeast Asia, or the Persian Gulf.
Deferred action is a vital tool that has been used historically to
protect vulnerable populations. If DHS could not grant deferred action
it would be unable to ensure that victims of domestic violence, sexual
assault, human trafficking, and other crimes are protected from
deportation while their applications for protections under the Violence
Against Women Act (VAWA) are processed.
why is it necessary for the president to act now?
In the absence of reform, the immigration system has become
increasingly broken and is failing American families, businesses, and
communities. Nation-wide polling has shown that Americans want major
reform. A January 2014, Fox News poll showed that 68 percent of
Americans supported allowing illegal immigrants to remain the country
and eventually qualify for citizenship if they meet certain
requirements like paying taxes, learning English, and passing a
background check. After the November 2014 election, Edison Research,
which does exit polling for the consortium of major news networks,
found that 57 percent of voters preferred that ``illegal immigrants
working in the U.S.'' be offered legal status instead of deportation.
AILA hears daily from businesses that cannot hire workers and are
stymied by the slow and dysfunctional operations of the immigration
system. Every day families are kept separated because of long backlogs
in the visa system. Now 11.5 million people are living in the country
without legal status. Most have families and jobs but cannot work
legally and must exist in the shadows. These individuals are also
subject to immigration enforcement and deportation. In the past several
years, DHS has deported hundreds of thousands of parents of U.S.
citizens--approximately 23 percent of all deportations--causing painful
separations of families.
America's immigration system is in urgent need of reform. AILA
supports the enactment of legislation, the only way to provide lasting
change. Until that happens AILA applauds the efforts of the President
and DHS to improve the system and implement reforms to the fullest
extent permitted by law. AILA welcomes the opportunity to work with
Congress and the President to make our system better for America.
______
Statement of Laura W. Murphy, Director, and Christopher Rickerd, Policy
Counsel, ACLU Washington Legislative Office; Vicki B. Gaubeca,
Director, and Brian Erickson, Policy Advocate, the ACLU of New Mexico,
Regional Center for Border Rights; Christian Ramirez, Director,
Southern Border Communities Coalition; and Ryan Bates, Executive
Director, Michigan United, Rich Stolz, Executive Director, OneAmerica,
and Steve Choi, Executive Director, New York Immigration Coalition,
Northern Borders Coalition
December 2, 2014
i. introduction
For nearly 100 years, the American Civil Liberties Union (ACLU) has
been our Nation's guardian of liberty, working in courts, legislatures,
and communities to defend and preserve the individual rights and
liberties that the Constitution and the laws of the United States
guarantee everyone in this country. The ACLU takes up the toughest
civil liberties cases and issues to defend all people from Government
abuse and overreach. With more than a million members, activists, and
supporters, the ACLU is a Nation-wide organization that fights
tirelessly in all 50 States, Puerto Rico, and Washington, DC, for the
principle that every individual's rights must be protected equally
under the law, regardless of race, religion, gender, sexual
orientation, disability, or National origin. The ACLU's Washington
Legislative Office (WLO) conducts legislative and administrative
advocacy to advance the organization's goal of protecting border
residents' and immigrants' rights, including supporting a roadmap to
citizenship for aspiring Americans.
The ACLU of New Mexico's Regional Center for Border Rights (RCBR)
stands with border communities to defend and protect America's
Constitutional guarantees of equality and justice for all families. The
RCBR works in conjunction with ACLU affiliates in California, Arizona,
Texas, Michigan, Washington, and New York, as well as advocates
throughout the border region who comprise the Southern Border
Communities Coalition (SBCC) and the Northern Borders Coalition (NBC).
SBCC brings together more than 60 organizations from San Diego,
California, to Brownsville, Texas, to ensure that border enforcement
policies and practices are accountable and fair, respect human dignity
and human rights, and prevent loss of life in the region. NBC is a
union of organizations along the Northern Border working to stand up
for civil and human rights together. The Coalition helps build shared
strategies amongst members to address new border challenges, and
collaborates with partners in the Southwest to share best practices.
The ACLU, SBCC, and NBC submit this statement to provide the committee
with an appraisal of the civil liberties implications of border
security proposals.
The ACLU, SBCC, and NBC oppose exorbitant spending on border
enforcement, spending which is taking place without thoughtful
consideration of current community and security needs. Current
proposals to throw money, personnel, and equipment at the border would
exacerbate the problems border communities face with militarization
today and ignore that:
Deployment of additional border security resources along the
U.S.-Mexico border would not be rooted in true border security
needs. Over more than a decade, the U.S. Government has built a
massive and comprehensive enforcement regime that has produced
the most enforced border in U.S. history. Adding more resources
would not only be wasteful and unnecessary, but would also be
at odds with the top-of-the-charts safety, economic vitality,
and diversity of border communities.
Overall, border-wide apprehensions by U.S. Customs and
Border Protection (CBP) are at their lowest levels in 40 years
and net migration from Mexico at zero. This summer's migration
of families and children fleeing violence in Central America
and turning themselves in was correctly identified by CBP
leadership as a humanitarian matter.
Spending, with particular emphasis on the Southwest Border,
has increased dramatically over the last decade with no
commensurate accountability measures, resulting in civilian
deaths at the hands of CBP personnel, unnecessary migrant
deaths in the desert, and many other civil and human rights
abuses on both our Nation's Southern and Northern Borders.
The U.S. Government cannot afford to throw money down the border-
security drain, particularly because this spending has also damaged
quality of life in border communities. The committee must not, without
transparent and broad-ranging metrics, uncritically adopt the erroneous
conventional wisdom of inadequate border security. Suggesting in a
vacuum of information that more border enforcement resources are needed
lacks fiscal responsibility and fails to give due attention to the true
needs of border communities suffering from a wasteful, militarized
enforcement regime. Moreover, justifying the additional deployment of
border enforcement resources and family detention as an appropriate
response to a humanitarian crisis in Central America contradicts our
core values of compassion and justice for scared mothers and children.
The ACLU, SBCC, and NBC urge the committee to focus its efforts on
ensuring that future border security is conducted humanely and in
accordance with best police practices. Legislation should bring greater
oversight and accountability--not war equipment or more boots on the
ground--to CBP: Our Nation's largest law enforcement agency.
i. border-security proposals must reject the misguided, wasteful
approach of the senate's corker-hoeven ``border surge'' amendment.
instead, congress should end the abusive militarization of border
communities.
a. The ``Mini-Industrial Complex'' of Border Spending
The committee has to this point, commendably, not followed the
severely-misguided approach incorporated last year in Senate Bill 744's
``surge'' of border security resources. Such proposals ignore the fact
that border security benchmarks of prior proposed or enacted
legislation (in 2006, 2007, and 2010) have already been met or
exceeded.\1\ In the last decade, the United States has relied heavily
on enforcement-only approaches to address migration, using deterrence-
based border security strategies that have continued and expanded to
record levels under the Obama administration:
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\1\ Chen, Greg and Kim, Su. ``Border Security: Moving Beyond Past
Benchmarks,'' AMERICAN IMMIGRATION LAWYERS ASSOCIATION, (Jan. 30,
2013), available at: http://www.aila.org/content/
default.aspx?bc=25667143061.
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CBP has become an interior law enforcement agency through
its vast claimed authority to patrol within 100 miles of all
land and sea borders, an unnecessary overreach based on
outdated regulations issued in the 1950s.
Because of ``zero-tolerance'' initiatives like Operation
Streamline, the Department of Homeland Security (DHS) now
refers more cases for Federal prosecution than the Department
of Justice's (DOJ) law enforcement agencies. Under President
Obama, immigration-related Federal prosecutions have reached
record levels at tremendous cost to U.S. taxpayers. Federal
prisons are already more than 30 percent over capacity, due in
large part to indiscriminate prosecution of individuals for
crossing the border without authorization, often to rejoin
their families.\2\ The majority of those sentenced to Federal
prison in 2013 were Latinos, who are now held in large numbers
in substandard private prisons.\3\
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\2\ Carson, E. Ann. U.S. Department of Justice, BUREAU OF JUSTICE
STATISTICS, ``Prisoners in 2013'' (Sept. 2014), available at: http://
www.bjs.gov/content/pub/pdf/p13.pdf.
\3\ U.S. Sentencing Commission, 2013 ANNUAL REPORT, Chapter 5,
available at http://www.ussc.gov/sites/default/files/pdf/research-and-
publications/annual-reports-and-sourcebooks/2013/
2013_Annual_Report_Chap5_0.pdf; see also ACLU of Texas and ACLU,
Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private
Prison System. (June 2014), available at https://www.aclu.org/sites/
default/files/assets/060614-aclu-car-report-on- line.pdf.
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Since 2003, the U.S. Border Patrol has doubled in size and
now employs more than 21,400 agents, with about 85 percent of
its force deployed at the U.S.-Mexico border. So many Border
Patrol Agents now patrol the Southern Border that if they lined
up equally from Brownsville to San Diego, they would stand in
plain sight of one another. This number does not include the
thousands of other DHS officials, including CBP Office of Field
Operations officers and one-fourth of all Immigration and
Customs Enforcement (ICE) personnel deployed at the same
border. It also does not include 651 miles of fencing, 333
video surveillance systems, and at least 10 drones for air
surveillance.
From a fiscal perspective, from fiscal year 2004 to fiscal year
2012, the budget for CBP increased by 94 percent to $11.65 billion, a
leap of $5.65 billion; this following a 20 percent post-9/11 increase
of $1 billion.\4\ By way of comparison, this jump in funding more than
quadrupled the growth rate of NASA's budget and was almost 10 times
that of the National Institutes of Health. For fiscal year 2015, the
administration's budget request for CBP was about $12.8 billion.\5\
U.S. taxpayers now spend more on immigration enforcement agencies ($18
billion) than on the FBI, DEA, ATF, U.S. Marshals, and Secret Service--
combined.
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\4\ Michele Mittelstadt et al., ``Through the Prism of National
Security: Major Immigration Policy and Program Changes in the Decade
since 9/11.'' (Migration Policy Institute, Aug. 2011), 3, available at
http://www.migrationpolicy.org/pubsFS23_Post-9-11policy.pdf.
\5\ Department of Homeland Security. ``Budget-in-Brief: Fiscal Year
2015,'' available at http://www.dhs.gov/sites/default/files/
publications/FY15BIB.pdf.
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CBP's spending runs directly counter to data on recent and current
migration trends and severely detracts from the true needs of border
security. Much attention has been paid to increased apprehensions of
children and families in south Texas, many of whom are fleeing terrible
violence in Central America. When analyzed border-wide and over time,
however, migrant apprehensions remain lower than at any time since the
1970s. Between 2000 and 2010, apprehensions by the Border Patrol
declined more than 72 percent to about 463,000. In fiscal year 2013,
Border Patrol apprehended almost 421,000 illegal crossers in total--
fewer than in 2010 and an equivalent of less than two apprehensions a
month per agent.\6\
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\6\ U.S Border Patrol, ``Nation-wide Illegal Alien Apprehensions
Fiscal Years 1925-2013,'' available at: http://www.cbp.gov/sites/
default/files/documents/U.S.%20Border%20Patrol%20-
Fiscal%20Year%20Apprehension%20Statistics%201925-2013.pdf.
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The costs per apprehension vary per sector, but are generally at an
all-time high. The Yuma, Arizona sector, for example, has seen a 95
percent decline in apprehensions since 2005 while the number of agents
has tripled. Each agent was responsible for interdicting fewer than 7
immigrants in 2013, contributing to ballooning per capita costs: Each
migrant apprehension at the border now costs five times more, rising
from $1,400 in 2005 to over $7,500 in 2011.\7\
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\7\ Immigration Policy Center, Second Annual DHS Progress Report.
(Apr. 2011), 26, available at http://www.immigrationpolicy.org/sites/
default/files/docs/2011_DHS_Report_041211.- pdf.
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The Committee should heed House Appropriations Committee Chairman
Hal Rogers' warning about the irrationality of border spending: ``It is
a sort of a mini industrial complex syndrome that has set in there. And
we're going to have to guard against it every step of the way.''\8\ The
committee's data-driven, bipartisan approach to border security, as
embodied by H.R. 1417, the Border Security Results Act, is an
improvement over proposals like the Corker-Hoeven ``border surge.''
However, H.R. 1417's narrow focus on border security remains misplaced
at a time when border enforcement is at an all-time high and continues
to have a detrimental impact on border communities. It also sets flawed
benchmarks in seeking a 90 percent ``illegal crossing effectiveness
rate'' across the Southwest Border without contemplating a thorough
study of border needs, particularly greater oversight and
accountability and cross-border economic exchange.
---------------------------------------------------------------------------
\8\ Ted Robbins, ``U.S. Grows An Industrial Complex Along The
Border.'' NPR (Sept. 12, 2012), available at http://www.npr.org/2012/
09/12/160758471/u-s-grows-an-industrial-complex-along-the-border.
---------------------------------------------------------------------------
b. Congress Must Expand Oversight and Accountability to Mitigate CBP
Corruption and Abuse.
Unprecedented investment in border enforcement without
corresponding oversight mechanisms has led to an increase in human and
civil rights violations, traumatic family separations in border
communities, and racial profiling and harassment of Native Americans,
Latinos, and other people of color--many of them U.S. citizens and some
who have lived in the region for generations. Corruption and criminal
conduct have also plagued the dramatically and recklessly expanded CBP
force, which, as reported by Politico Magazine, had nearly one CBP
Officer or Agent arrested for misconduct every single day from 2005 to
2012.\9\ Politico Magazine's exposee of CBP closely examines the now
well-documented deficiencies in CBP's use-of-force policy and practice,
which have led the agency to become one of our Nation's ``deadliest''
and most ``out-of-control'' law enforcement agencies. Since January
2010, at least 31 individuals have died from lethal force by CBP
Officers and Agents. These cases include 14 individuals who were U.S.
citizens and 6 individuals who were shot and killed while standing in
Mexico--three of whom were teenagers, ages 15, 16, and 17.
---------------------------------------------------------------------------
\9\ Graff, Garrett M. ``The Green Monster: How the Border Patrol
became America's most out-of-control law enforcement agency,'' POLITICO
MAGAZINE (Nov./Dec. 2014), available at http://www.politico.com/
magazine/story/2014/10/border-patrol-the-green-monster-112220.-
html#.VHdurlfF8Wk.
---------------------------------------------------------------------------
In numerous cases individuals were shot multiple times, including
through the back, such as Jose Antonio Elena Rodriguez who was struck
by at least eight bullets--all but one in the back--across the border
fence in Nogales, Sonora by agents responding to alleged rock
throwing.\10\ Also among the most well-known cases is that of Anastasio
Hernandez Rojas who--by the happenstance of a witness video-- was shown
to be handcuffed and prostrate on the ground, contrary to the agency's
incident reporting, when dozens of agents beat and Tased him to death.
The San Diego coroner classified Mr. Hernandez's death as a homicide,
noting in addition to a heart attack: ``several loose teeth; bruising
to his chest, stomach, hips, knees, back, lips, head and eyelids; five
broken ribs; and a damaged spine.'' Both of these cases, and many more,
illustrate common shortcomings in policy and practice that were
criticized in an audit of CBP's use-of-force incidents conducted by the
Police Executive Research Forum (PERF) and publicly released on May 30,
2014.
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\10\ Skoloff, Brian. ``Border Patrol Shot Mexican Teen Jose Antonio
Elena Rodriguez 8 Times: Autopsy,'' ASSOCIATED PRESS (Feb. 8, 2013),
available at http://www.huffingtonpost.com/2013/02/08/border-patrol-
shot-mexican-teen-jose-antonio-elena-rodriguez-autopsy_n_2646191.-
html.
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The Arizona Republic documented more than 46 deaths for which CBP
is responsible since 2004-2005, and, as noted by the Republic in
December 2013, in ``none of [these] deaths has any agent or officer
been publicly known to have faced consequences--not from the Border
Patrol, not from Customs and Border Protection or Homeland Security,
not from the Department of Justice, and not, ultimately, from criminal
or civil courts.''\11\ Former head of CBP Internal Affairs James F.
Tomsheck has flagged at least a quarter of 28 lethal force cases as
``highly suspect,'' and alleged that ``Border Patrol officials have
consistently tried to change or distort facts to make fatal shootings
by agents appear to be `a good shoot' and cover up any wrongdoing.''
Perhaps most alarmingly of all, Tomsheck said he believes that
thousands of employees hired by CBP during the agency's unprecedented
expansion after 9/11 are potentially unfit to carry a badge and
gun.\12\ Lack of accountability for these unprofessional and dangerous
personnel mars the reputations of officers and agents who conduct
themselves properly.
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\11\ Crosby, Cherrill. ``Change occurring after Republic's border
investigation,'' ARIZONA REPUBLIC (Aug. 4, 2014), available at: http://
www.azcentral.com/story/news/politics/investigations/2014/08/02/border-
force-republic-investigation-change/13534935/.
\12\ Becker, Andrew. ``Removal of border agency's internal affairs
chief raises alarms, ``CENTER FOR INVESTIGATIVE REPORTING (June 12,
2014), available at: http://cironline.org/reports/removal-border-
agencys-internal-affairs-chief-raises-alarms-6443.
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CBP's failure to establish an institutional culture of
accountability has far-reaching consequences for border communities,
beyond excessive force. Numerous administrative complaints, legal
claims, and reports documenting wide-spread CBP abuse in short-term
custody facilities detail physical and verbal abuse, denial of medical
care, failure to provide sufficient food and water, overcrowding,
exposure to extreme temperatures, denial of communication with family
and consular or legal support, failure to return personal belongings at
the moment of repatriation, and use of coercion to pressure individuals
into signing away legal rights. One New Mexican, Jane Doe, was held for
hours by CBP officials who subjected her to repeated, invasive searches
at a port of entry in El Paso, TX and subsequently a local hospital.
After hours of humiliating searches she never consented to and which
turned up no contraband, Ms. Doe was released with a hospital bill.\13\
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\13\ Planas, Roque. ``Woman's Lawsuit Alleges Horrifying Abuse By
Border Officers, Including Cavity Searches And Forced Bowel
Movements,'' HUFFINGTON POST (Mar. 6, 2014), available at http://
www.huffingtonpost.com/2014/03/06/border-cavity-search_n_4907225.html.
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CBP operates in an antiquated 100-mile zone extending toward the
interior from any land or sea border, a distance that has no statutory
basis and originated without scrutiny 60 years ago in now-outdated
regulations.\14\ The area includes two-thirds of the U.S. population,
entire States like Florida and Maine, as well as almost all of the
country's top metropolitan areas. This zone has converted CBP,
particularly Border Patrol, into an interior enforcement agency that
widely roams border communities.
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\4\ See ACLU, The Constitution in the 100-Mile Border Zone (2014),
available at https://www.aclu.org/immigrants-rights/constitution-100-
mile-border-zone.
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By setting up interior checkpoints and conducting roving patrols
many miles from the border, CBP does little to further border security
goals but much to harm the quality of life of those who live and work
in the border region. This includes communities like Arivaca, AZ, where
residents have petitioned for the removal of one of three interior
checkpoints that surround their community and have documented daily
encounters between residents and agents. Their report found that Latino
motorists were more than 26 times more likely to be asked to show
identification, and 20 times more likely to be sent to secondary
inspection.\15\ But even non-Latino residents like Clarisa Christiansen
and her children live in fear of the Border Patrol after agents pulled
her over on a rural stretch of road near her house, threatened to cut
her out of her seatbelt with a knife, and slashed her tires--all
because she asked to know the reason agents stopped her.\16\
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\15\ Echevarri, Fernanda. Group Alleges Border Patrol is Racial
Profiling at Arivaca Checkpoint, NATIONAL PUBLIC RADIO (Oct. 20, 2014),
available at: https://www.azpm.org/p/top-news/2014/10/20/47393-group-
alleges-border-patrol-is-racial-profiling-at-arivaca-checkpoint/.
\16\ See video at ACLU website ``Border Communities Under Siege,''
available at https://www.aclu.org/border-communities-under-siege-
border-patrol-agents-ride-roughshod-over-civil-rights.
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Northern Border residents have reported Border Patrol Agents
conducting roving patrols near schools and churches and asking
passengers for their documents on trains and buses that are traveling
far from border crossings. The ACLU of Washington State brought and
settled a class-action lawsuit to end the Border Patrol's practice of
stopping vehicles and interrogating occupants without legal
justification. One of the plaintiffs in the case was an African-
American corrections officer and part-time police officer pulled over
for no expressed reason and interrogated about his immigration status
while wearing his corrections uniform.\17\
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\17\ Complaint available at http://www.aclu-wa.org/sites/default/
files/attachments/2012-04-26--Complaint_0.pdf.
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To expand border resources--particularly Border Patrol staffing--
would badly worsen CBP's accountability crisis and compound the damage
caused by prior hiring binges. It would also run contrary to the
reality of border communities, which are safe,\18\ diverse, and
economically critical to this country. Our communities are forced to
endure regular aggression, hostility, and intimidation from a
significant percentage of CBP Officers and Agents. Border residents,
like any community, should not have to live with fear and mistrust of
law enforcement.
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\18\ See, e.g., Frances Burns, ``Rep. Cuellar: Texas cities on the
Mexican border have less crime.'' UPI (Nov. 19, 2014) (quoting
Congressman Cuellar: ``Many people characterize the southern border as
being unsafe but today's numbers paint a very different picture.''),
available at http://www.upi.com/Top_News/US/2014/11/19/Rep-Cuellar-
Texas-cities-on-the-Mexican-border-have-less-crime/3971416406308/.
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Border communities are a vital component of the half-trillion
dollars in trade between the United States and Mexico, and the damaging
effects of militarization on them must be addressed by serious
oversight and accountability reforms to CBP. While the Federal
Government has the authority to control our Nation's borders and
regulate immigration, CBP officials must do so in compliance with
National and international legal norms and standards.
As employees of the Nation's largest law enforcement agency, CBP
officials should be trained and held to the highest law enforcement
standards. Systemic, robust, and permanent oversight and accountability
mechanisms for CBP must be the starting point for any discussion on
border security:
Equipping all CBP personnel with body-worn cameras;\19\
---------------------------------------------------------------------------
\19\ See ACLU, ``Strengthening CBP with the Use of Body-Worn
Cameras.'' (June 27, 2014), available at https://www.aclu.org/criminal-
law-reform/strengthening-cbp-use-body-worn-cameras.
---------------------------------------------------------------------------
Implementing enforceable custody standards;
Reforming DHS complaint systems to provide a transparent,
uniform process for filing complaints;\20\ and
---------------------------------------------------------------------------
\20\ See ACLU et al., Recommendations to DHS to Improve Complaint
Processing (2014), available at https://www.aclu.org/sites/default/
files/assets/14_5_5_recommendations_to_-
dhs_to_improve_complaint_processing_final.pdf; see also American
Immigration Council, No Action Taken: Lack of CBP Accountability in
Responding to Complaints of Abuse (2014), available at http://
www.immigrationpolicy.org/special-reports/no-action-taken-lack-cbp-
accountability-responding-complaints-abuse.
---------------------------------------------------------------------------
Rolling back the antiquated 100-mile zone.
Such improvements would create a legacy of CBP reform that would
improve the quality of life and restore trust for this and future
generations of border residents.
conclusion
Congress should transform border enforcement in a manner that is
fiscally responsible, respects and listens to border residents before
defining their communities' needs, and upholds Constitutional rights
and American values. The ACLU, SBCC, and NBC commend the House
Committee on Homeland Security for its past commitments to define
border security with precision before funneling more resources. We urge
the committee to prioritize reduction of CBP abuses in the currently-
oppressive border and immigration enforcement system which has cost
more than $250 billion in today's dollars since 1986.\21\
---------------------------------------------------------------------------
\21\ Robbins, supra.
Chairman McCaul. I want to remind the Members of this
committee that the Secretary has 30 minutes left, so if you can
keep your remarks as short as possible.
With that, Mr. Vela.
Mr. Vela. Mr. Secretary, if I had known we could have
played clips, I was reminded of a scene from Cheech and Chong
with the background music of coming to America. If anybody had
an interest they can probably find it on YouTube. But I, too,
want to thank you for your accessibility since having taken
office, and I just want to say that since we have been dealing
with you and your staff we have seen marked changes and
progress between communications between this committee and
yours.
I think with respect to the idea of border security, you
were asked about metrics, the fact is, is that this committee
in a fully bipartisan fashion almost a year ago passed a border
security bill that would have established those metrics, and we
have yet to see it on the House floor. We have 2 weeks left
before the end of the year. If that bill was brought to the
House floor, you would have a border security bill by the end
of the year.
With respect to the issue of a permanent solution in the
context of immigration, the fact of the matter is, is our
choices are very stark in my view. There are those who believe
that of the millions of people who have been working here in
our construction sites, our hotels, our restaurants, and all
across this country, that what we ought to do is rope them up
and send them back. There are those who believe that we ought
to develop a pathway to citizenship and a legalization process.
What I strongly object to--and remember that I agree we need
border security. That is why I voted on the bill that passed
this committee--what I strongly object to is the idea that the
legalization process ought to be conditioned on border
security, because to me if you define border security as making
sure that we prevent people from coming here in the future, I
don't see what that has to do with the people that are already
here.
I also cringe when I hear the word border crisis because in
my view what we are talking about is three separate crises that
are interrelated. That is the crisis of drug smuggling, human
smuggling, and illegal migration. The fact is, is that those
are crises that do not end or begin at the border. They begin
with economic conditions in Mexico and Central America and
issues of cartel violence in Central America and Mexico as
well, and they end with our demand for drugs on this side of
the border as well as the fact when you consider the fact that
over a thousand cities across this country, FBI statistics
shows that there is a cartel presence.
So I really believe that if we are ever going to really
address the root causes of those three issues, that we really
have to start talking about issues of economic development in
Mexico and Central America and addressing cartel violence. With
that in mind, what I would ask, and this may be coming from
left field because I know it is more of a Department of Justice
matter, in the last year the former governor of Tamaulipas,
Mexico, was indicted in the Southern District of Texas and an
extradition order has been issued by the Federal judge down in
Brownsville, and I would just ask that you do whatever you can
with respect to the other department heads to see if we cannot
bring this gentleman to justice. Because when we talk about
drug smuggling, we talk about human smuggling, the fact of the
matter is, it is not the coyotes making the money, it is the
people at the top.
I yield the rest of my time.
Secretary Johnson. Congressman, may I respond?
Chairman McCaul. Yes, sir.
Secretary Johnson. Just briefly. I have this thought
listening to you, Congressman. Negotiating and arriving at an
acceptable piece of legislation that addresses our immigration
system in a comprehensive way, in my judgment, should not be
that hard. I have in my private law practice negotiated the
most complex civil settlements ever on Wall Street. I believe
that if we could just strip away the emotion and the politics
on this issue and you brought me the right group of Members of
the House of Representatives, I could negotiate a bill with
you, and I am issuing that invitation again. I believe we could
do it. It should not be that difficult.
Chairman McCaul. Thank you.
The Chairman now recognizes Mr. Barletta.
Mr. Barletta. Thank you, Mr. Chairman.
Mr. Secretary, some people say that our economic security
is National security. Nearly 20 million Americans woke up this
morning either unemployed or underemployed. Now, the President
didn't mention these Americas when he announced his plan to
grant de facto amnesty and work permits to up to 5 million
illegal immigrants. He didn't discuss the competition this
would create for them or the impact it would have on their
pocketbooks. Your series of memoranda outlining this policy for
him didn't mention them either.
To address this problem and protect the American worker, I
introduced legislation prior to the President's announcement
that would make clear that illegal immigrants benefiting from
his Executive amnesty are not authorized to work in the United
States. When it comes to illegal immigration, the conversation
is always about the illegal immigrant, not about the people
that it will affect. You see, Mr. Secretary, I don't think it
is fair, especially around the holidays, to put illegal
immigrants ahead of the American worker.
Secretary Johnson, the President keeps saying that his
Executive Action will boost the economy. So tell me, how will
adding at least 5 million new competitors to the workforce make
it easier for the unemployed Americans to find a job?
Secretary Johnson. Congressman, the fact is, as I am sure
you know, that we have lots of undocumented in this country
working off the books. If that is not apparent, then I suggest
you spend some time in a restaurant here in the Washington, DC,
area to see it for yourself. What we want to do is encourage
those people to get on the books, and I will provide them a
work authorization so that they may legally continue in the
employment they now have.
Mr. Barletta. But how does that make it easier for the
American worker? We keep talking about the illegal immigrant.
Here we go again talking about the illegal immigrant and how we
can make it easier for them. How does this help the American
worker who can't find work and can't provide for his family?
Who is fighting for them? Why don't we talk about the American
worker and what this will do to them, not what it will do for
the illegal immigrant?
Secretary Johnson. Well, the economy is getting better, as
I am sure you know. The question of U.S. jobs, American jobs,
is in my view a separate issue. What I want to do----
Mr. Barletta. So adding 5 million more competitors for
these jobs will make it easier?
Secretary Johnson. If I may finish my sentence. The
estimate is that the potential class is up to 4 million. Not
all of those will apply. The goal is to encourage these people
who are now working off the books, and we do have undocumented
immigrants in this country working off the books, to get on the
books, pay taxes into the Federal Treasury pursuant to a work
authorization. The assessment is that that will not impinge
upon American jobs with American workers.
Mr. Barletta. Mr. Secretary, is it true that the illegal
immigrants who were granted amnesty will not need to comply
with the Affordable Care Act?
Secretary Johnson. Those who are candidates for and are
accepted into the deferred action program will not be eligible
for comprehensive health care, ACA.
Mr. Barletta. So therefore an employer may have a decision
to make: Do I keep the American worker and provide health
insurance or pay a $3,000 fine or do I get rid of the American
worker and hire someone who I do not have to provide health
insurance and I won't get fined? Is that a possibility?
Secretary Johnson. I don't see it that way.
Mr. Barletta. You don't think any employers will see it
that way?
Secretary Johnson. I don't think I see it that way, no. No,
sir.
Mr. Barletta. Following the 9/11 Commission report, the
Commission staff issued a report on terrorist travel that made
connections between enforcement of our immigration laws and
National security. On Page 98 of that report it describes how
terrorists would benefit from any form of amnesty. The report
recognized that terrorists in the 1990s, as well as the
September 11 hijackers, needed to find a way to stay in or
embed themselves in the United States if their operational
plans were to come to fruition. This tells us what we all know,
that terrorists want two things. They want to get into this
country, and then they want to stay here.
Mr. Secretary, does the President's Executive Action
facilitate just that by not heeding the advice of the 9/11
Commission and its staff, and how can this administration
justify its Executive Actions on immigration when it directly
contradicts their findings?
Secretary Johnson. The reality is that we have an estimated
11.3 million undocumented in this country. From my Homeland
Security perspective and from the perspective of someone whose
principal mission is counterterrorism, I want to see those
people come out of the shadows. I want to encourage people----
Mr. Barletta. But you did testify in the last hearing----
Secretary Johnson. If I may finish my sentence. I want
people to submit to criminal background checks and come out of
the shadows. The problem we have right now is we have 11
million people in this country and we do not know who they are
from the perspective of what you just read from that 9/11
Commission report. We are vulnerable. I want people to come out
of the shadows----
Mr. Barletta. Mr. Secretary, you testified at the last
hearing, and you agreed with me and your words were, most
criminals do not subject themselves to criminal background
checks.
Secretary Johnson. I want as many as possible to submit to
criminal background checks.
Mr. Barletta. Thank you, Mr. Chairman.
Chairman McCaul. Let me just say to the remaining Members,
due to the time constraints of the Secretary, we are going to
limit questioning to 3 minutes by unanimous consent. Without
objection, so ordered.
The Chairman now recognizes Mr. Swalwell from California.
Mr. Swalwell. Mr. Secretary, does the number 2,577,516 mean
anything to you?
Secretary Johnson. It sounds familiar. I am not sure why it
sounds familiar.
Mr. Swalwell. Would it surprise you to learn that according
to the American Immigration Council this is the number of
immigrants granted temporary relief by Republican Presidents
over the last 50 years?
Secretary Johnson. That is news to me. That is a big
number.
Mr. Swalwell. Would it surprise you that not a single
person who has sat on this dais with me, particularly among my
GOP colleagues, made a single public statement criticizing any
Executive Actions taken by any Republican Presidents with
respect to immigration?
Secretary Johnson. I am not sure what to say.
Mr. Swalwell. Our Chairman has brought up a number of times
that we have a bipartisan bill, something that I admire, that
he was able to shepherd through this committee, yet it has not
come to the floor for a vote. It is frustrating to me that we
are bringing you here to criticize the President's actions, yet
Speaker Boehner has a bill that addresses border security that
has not been brought to the floor. I believe that in many ways,
by silencing both sides of this issue by not allowing a vote,
the Speaker in many ways is taking his own Executive Action
that refuses to allow people who oppose immigration reform and
those who support it to even be a voice of their district and
take a vote.
So with that in mind, I want to know, among the 11.3
million undocumented immigrants, do you know, Mr. Secretary,
how prioritizing felons over families for deportation, what
that will do to make us safer as opposed to what we have been
doing prior?
Secretary Johnson. Well, the guidance that I issued is
guidance in clearer terms that spells out exactly the types of
offenses that are priority 1s, priority 2s. When we did our
review, we found that there was a fair amount of ambiguity in
the existing guidance that needed to be cleaned up because
there was a lot of misunderstanding in the field that led to
some of the cases of heartache that we all hear about. So the
guidance is clearer.
With that is a restart of the Secure Communities Program.
Secure Communities is intended to get at criminals who are
undocumented in jail. But there is a lot of resistance now to
Secure Communities. So an integral part of this promoting
public safety is a fresh start on the Secure Communities
Program.
The last thing I will say is when we talk about a bill, I
believe the Speaker's desire for comprehensive immigration
reform is genuine. I will say again that I am interested in
working with Members of this committee, Members of the House of
Representatives on a piece of legislation or pieces of
legislation that addresses our system in a comprehensive way,
in a way that our Executive Actions cannot reach.
Mr. King [presiding]. The time of the gentleman has
expired.
The gentleman from Florida, Mr. Clawson.
Mr. Clawson. Thank you for coming today, Mr. Secretary. I
am not going to harangue you or badger you, and I will ask you
to be quick with me so we can get right to what I want to know
in all sincerity.
In previous meetings that I have been here, I have been
told a little bit of what you have said today, which we need
more resources. Eight billion dollars is the backlog of CapEx
for ports and so forth, as I understand. Going to spend $800
million on new ports in the next 5 years, some of your border
folks have told us. But when we ask for operational data to
know what the bang for the buck is for the taxpayer, we really
get very little data. If I was a board member and you and I
were back in our previous lives, I would say, how can I say
okay to more resources and more effort, more taxpayer
involvement, when I don't know the return on investment for the
CapEx and I don't know what the operational effectiveness is
other than really macro data? Can you shed any light on that?
Am I missing the boat here?
Secretary Johnson. Well, I will shed light on my commitment
to more transparency. I think part of the problem we have is
lack of coherent data. So one of the things I directed in the
Executive Actions that we issued week before last is I directed
the Office of Immigration Statistics to create the capacity to
collect, maintain, and report to the Secretary data reflecting
the numbers of those apprehended, removed, returned, or
otherwise repatriated, by any component of DHS. I also intend
that this data be part of a package of data released by DHS to
the public annually.
So I am sympathetic to what you are saying, and I would
like to see us in addition to this develop metrics for how we
define border security so that the Congress and the public
understands what we are driving for.
Mr. Clawson. But I just don't know how much bang for the
buck we are getting for the taxpayer dollar. So in addition to
how many people we are capturing and how many are getting
through, what is the return on investment for the money we are
spending? It is hard for me to say yes or no to what is being
asked if I don't know how well we are spending the current
money and the money that has been----
Secretary Johnson. I would encourage you, if you haven't
already, to look at the speech I gave on border security in
October to a think tank called CSIS, where I laid out a lot of
the investment and a lot of the data concerning apprehensions
of illegal immigrants to get at a clearer picture of what you
are getting on the return on your investment.
Mr. Clawson. Any data that would help us understand how
well the Department is working will make it easier for us to be
open-minded to working together as you say. Thank you.
Secretary Johnson. There is a misapprehension that things
are as worse as they have ever been. In fact, apprehensions of
illegal immigrants is a fraction of what it used to be, in
large part because of the investment that this Congress has
made in border security we are seeing a return on investment. I
think we can do better, but we have invested a lot in
surveillance, personnel, as the Chairman knows and others, over
the last 15 years, and we have seen a return on investment.
Apprehensions used to be 1.6 million. They are now down to
between 400,000 and 500,000. But I believe we can do better.
Mr. King. The time of the gentleman has expired.
The gentlelady from California is recognized.
Ms. Sanchez. Thank you, Mr. Chairman.
Thank you, Secretary, for being before us. I had the
pleasure of working with you when you were over at the Defense
Department, and I am glad you are staying on at Homeland
because this is a very, very critical time. I am worried, being
double-hatted sitting on Defense and Homeland, I am worried
about threats from ISIS and terrorists and coming into our
country or being embedded in our country or some would say
mentoring candidate or what have you, but here we are. We are
here to protect America and to protect Americans. So thank you
for the work that you and all the people who work in your
Department do on our behalf.
I want to go back to something that you said, the whole
issue of having background checks on people, because I live in
California. We have a lot of people there who for whatever
reason don't have the right documents to be in our country.
Some actually would qualify and have qualified under our
programs, under the legal, but if they have to wait 10 years
away from a loved one because they have to wait outside of the
country, they have probably broken that and they have decided
to stay and live those 10 years here with their loved one or
their child rather than do what we do to them, which is to push
them out for 10 years. There are people who just--it has taken
too long. The backlog is just so long for some of these people
to get through the process even though they qualify under
everything.
So I am thrilled that we are going to get good people who
are our deacons in our churches, they are PTA moms, to come
forward, to give us their data, to give us their fingerprints,
to pay a fine, and to say, let us work, let us go on with our
lives here, especially if they have USA-born children or legal
residents. I am thrilled that the President understands that.
But I am even more thrilled about it because that allows
these limited resources that we have to be trained on the
people that I really want to go after, and that is these
terrorists and these threats to our country. A lot of people
say, well, you are Hispanic, Loretta, so you care about the
Latino community. I have to tell you, I have got one of the
largest Asian populations in the Nation. I have got Romanians.
I have got all sorts of people who have come from other
countries, many of them working, some of them paying taxes, but
many of them working and wanting to get on an even footing here
in the United States.
So I just want to thank you, Mr. Secretary, because I know
that you sat down and you took a look and you used your lawyer
skills and everybody else's skills to sit down and figure out
how do we make sure that the limited resources we have are
trained on the bad guys, not on the people who are really part
of our American family? So I just want to thank you.
Mr. King. Time of the gentlelady has expired.
Gentleman from South Carolina.
Mr. Sanford. Thank you, Mr. Chairman.
Mr. Secretary, delighted to be with you again. I have but 3
minutes, I am going to try and ask three quick questions, and
therefore I would ask for your brevity if possible.
First question is, I mean, fundamentally a question about
fairness, which is I think one of the things that a lot of
people struggle with on the notion of the President's Executive
and unilateral action is that it will put a lot of families
from around the world in essence in a second-class bus. My
question to you would be: Is it fair to those families who have
been waiting in the queue in terms of immigration to go behind
a bunch of folks that in essence will get favorable status
based on the Executive Action?
Secretary Johnson. Well, that is not what we have done,
sir. Through Executive Action we cannot grant citizenship, we
cannot put somebody in the head of the line for citizenship,
and we are not granting lawful permanent residence. Deferred
action is simply for a period of time a determination that
someone should be lawfully present in the country, which is a
significantly lower form of status.
Mr. Sanford. Fair enough, but it is de facto citizenship in
that they are able to live here, work here, raise families
here, et cetera. I will quickly move on to the second question.
Secretary Johnson. In fact, they already are.
Mr. Sanford. What is that?
Secretary Johnson. In fact they already are.
Mr. Sanford. They are, but they don't have the legal claim
to our entitlement system that they now will. I mean, if you
look at our entitlement system, it is $18 trillion in the hole,
and most of them are based on being lawfully present in this
country to be eligible for entitlements. So, I mean, how do you
say to that family in Mississippi who has been struggling to
make it, our entitlement system is based in paying for the
whole of your life, you get to the retirement age, and then you
begin to collect, what do you say to that family, your
retirement system, your health care system as it is provided by
Government will be less financially solvent than it would have
been based on this unilateral action? What would you say in
terms of fairness there?
Secretary Johnson. I would say that the people we are
talking about are already here. They have been here for years.
They have become integrated members of society, and I want them
to come forward----
Mr. Sanford. But they are not going to collect Social
Security or Medicare----
Secretary Johnson [continuing]. And contribute to the tax
base of this country.
Mr. Sanford. But they won't collect the way they will, and
the question is: Do you get more than you give? The Wall Street
Journal had a very interesting editorial within the last 2
weeks on that very point. I see I am down to 34 seconds.
The last question is, in your opening statements, a lot of
the attributes that you defined could be handled perfectly by
work permits. Why not just do work permits rather than this de
facto sort of quasi-citizenship that comes with this Executive
Action?
Secretary Johnson. Work authorization is something the
Secretary of Homeland Security has the authority to give by
statute to someone who has been granted deferred action, so
that is what we did.
Mr. Sanford. I see I have 3 seconds, Mr. Chairman. I would
go for a second question, but don't have it.
Mr. King. You guys speak more slowly than we do.
The gentlelady from New York, Ms. Clarke.
Ms. Clarke. Thank you, Mr. Chairman.
There was a statement made earlier by the gentleman from
South Carolina, Mr. Duncan, that I know was a gross
generalization about the American people as it relates to the
Executive Order issued by President Obama. So for the record,
overwhelmingly the Americans in my district laud and support
what President Obama has done, and they have your back.
I want to ask Secretary Johnson, the President's Executive
Action was certainly a step in the right direction, and for
many it speaks to the moral, social, and family-related reasons
that will have a positive effect on our civil society.
However, I want to get to the economics of this, because it
has been raised by a number of colleagues and particularly Mr.
Barletta. It was estimated recently by the Center for American
Progress that this Executive Action will raise an additional $3
billion in payroll taxes in the first year alone, and $22.6
billion over 5 years as workers and employers get on the books
and begin paying taxes for the first time. Even individual
States will gain from this. Do you believe that the economic
factors like these should play a role in determining our
immigration policy?
Second, the issue of Securing the Cities. The program
fingerprints individuals booked in State and local jails and
submitted electronically to the FBI for criminal background
checks. It allows ICE to identify potentially removable
individuals. The question is, the program has been
controversial, both legally and politically, as you know. It is
my understanding that the Priority Enforcement Program, which
will replace Securing the Cities under the administration's
plan, will rely on the same technology as Securing the Cities
but would focus on individuals in State and local custody who
have been convicted of felonies and significant misdemeanors.
Please explain how PEP will maintain the biometrics collection
and background checks under Securing the Cities while also
addressing important concerns raised by the courts, advocates,
and local communities about Securing the Cities.
Secretary Johnson. Well, you characterized it accurately.
To address the legal concerns that are arising in litigation we
are no longer going to be putting detainers on people. Instead
we will have request for notification. A detainer in litigation
has often, and the court determines that State and local law
enforcement did not have the legal authority to hold that
person simply because of a detainer when they would have
otherwise released them. So in place of that, we are going to
have request for notification so that we are notified before
the individual is released, unless we have probable cause to
tell the NYPD, for example, that the person is undocumented and
will be removed.
I agree with your question about, should economics play a
role in immigration policy? I am not an economist. I will refer
you to the President's Council of Economic Advisors' analysis
which was issued week before last on the impact of our
Executive Actions on the economy.
Ms. Clarke. Thank you.
Mr. King. The time of the gentlelady has expired, and I now
recognize myself for the purpose of questioning.
Secretary, it is good to see you today. Thank you for being
here.
Let me begin my questioning on a positive note. I was in a
meeting the other night with a number of Republicans from New
York who strongly opposed the Executive Order, but several of
them went out of their way to say they had dealt with you as a
lawyer and they have the highest regard for your integrity and
professionalism. Totally unsolicited, they made a point of
saying that first. I agreed with them.
Secretary Johnson. It goes downhill from here. Thank you.
Mr. King. Downhill, yeah.
No, I am opposed to the Executive Order for a number of
reasons. We can discuss, you know, the legal merits of it, but
I am influenced greatly by the Youngstown Sheet and Tube case,
where Justice Jackson--where the Court struck down the
Executive Action by President Truman, and he was saying that
Executive Action in questionable cases must be scrutinized with
caution. Because he said, what is at stake is the equilibrium
established by a Constitutional system.
That is what I see here as being--apart from all the
legalities, which I think are significant, is the fact that,
for the American people to have faith in the Government, they
should feel that there is good faith coming from both sides.
In this case, we had the President time and again saying he
did not have the power to do this. We have the fact that any
time over the last 6 years the President could have issued this
Executive Order, the fact that he did not issue the Executive
Order until after the elections were over.
If the President felt there was a consensus among the
American people, then this should have been part of the
campaign debates. That is how in a democracy people express
their views. The fact is, they were virtually silent on this
issue throughout the campaign. The campaign is over,
Republicans win both houses, and then the President issues this
order.
I would say that if the President is sincere about wanting
legislation and if he believes he has the right to issue this
order, why didn't he say he realizes things have changed in the
Congress, he disagrees with the fact that the House did or did
not act, and set a deadline of July 1, and as of July 1 he
could issue his Executive Order, we could take what action we
want against it, whether it is legislative, whether it is
appropriations-wise?
But during that 6 months, the President would have an
opportunity to frame the National debate on trying to come to
an immigration bill. He would be able to focus attention on it.
Then you would have seen Republicans in the House and the
Senate being in a position where they would have to deal with
the President.
Then if July 1 comes along and there is no--I am using that
as an arbitrary date; it could be any date--then the President
could issue the Executive Order, and the American people could
decide who was right and who was wrong. Congress could take
what action it felt it had to. The President, through you,
could go ahead and implement the order.
So I just feel--and I use these words advisedly--that there
was bad faith in issuing the Executive Order at this time. If
we are trying to get the confidence of the American people,
this is not the way to do it.
Secretary Johnson. I guess, in response, Chairman, I would
say we did do that. We did exactly that. We said we were going
to do this in the spring, and the President decided to wait
over the summer to see whether the Congress would act.
The Speaker, whose desire for immigration reform I believe
is genuine, had hoped that he could get immigration reform
through the House of Representatives. That did not happen. The
President said he would wait. The Speaker told him, we are not
going to get a bill.
Then we decided to wait until after the mid-terms, even
further, and here we are. We have done a lot of waiting. We
waited for several years, sir.
Mr. King. I just think the President's Executive Order--
again, the impression it would leave is he is trying to undo
the impact of the election. If he felt that strongly about it,
he should have issued it before the campaign.
But my time has expired, and I am not trying to end your
discussion. Again, my respect for you.
Now my friend from New Jersey, Mr. Payne.
Mr. Payne. Thank you, Mr. Chairman.
Mr. Secretary, always a pleasure to see you here. I want to
say that I am also delighted that you will be staying on at
Homeland Security. I think that you, in your time there, have
brought that organization together tighter and more efficient.
For that, I thank you.
It is my understanding that this Executive Order--this
Executive Action will only last for 2 years under the Obama
administration, and it is not clear what will happen to the
millions who are affected under DACA and now DAPA when the
administration is over. This creates a lot of uncertainty, in
my opinion, and underscores the need for Congressional action
to clear up and fix this broken immigration system.
So, in your opinion, what will happen to the children and
parents who are being encouraged now to come out of the shadows
in 2 years if nothing happens?
Secretary Johnson. Well, the nature of Executive Action is
that the next Executive can undo it. I would hope that that
would not happen here. Administration to administration, we do
not typically undo administrative Actions, Executive Orders,
particularly where you are affecting in what I think would be a
rather harsh manner the lives of people who are here in this
country.
So my hope is, first, over the next 2 years, there is
legislation that, in effect, addresses the same phenomenon in
the same way. But in the absence of that, my hope is that these
Executive Actions are sustained as good Government policy.
Going forward--I want to emphasize this--going forward,
those apprehended who came here illegally January 1, 2014,
under our existing policy, are priorities for removal and will
not be eligible for deferred action going forward. So there is
a clear demarcation between those who have been here for years
and those who would think to come here in the future illegally.
Those people will be priorities.
Mr. Payne. How can Congress help ensure that these millions
of people are not encouraged to go back into the shadows in 2
years?
Secretary Johnson. Support us through legislation.
Mr. Payne. So it is really time Congress stood up and
helped fix this problem rather than throwing darts at the
administration.
Secretary Johnson. That is my hope. I believe that it is a
solvable problem legislatively, and I believe that if we can
remove the emotion and the politics we can achieve it. There
are several Members of this committee who I believe I could
work with on a comprehensive solution legislatively.
Mr. Payne. Thank you, Mr. Secretary.
I yield back.
Chairman McCaul [presiding]. The Chairman recognizes Mr.
Meehan.
Mr. Meehan. Thank you, Mr. Chairman.
Thank you, Secretary, for being here. You know I have a
great deal of respect for you. You are an attorney. But I have
some fundamental disagreements with a couple of the points that
were made, and I just need your articulation on this.
You are the one who said somehow somebody may be--what you
are doing is creating an opportunity for them to lawfully be
here in the country. Now, I think it is an unquestioned point
that, as the law stands today, anybody who illegally enters the
United States is a deportable alien. That is the Congressional
intent.
But what has happened by this directive is the President
has stepped into the authority of Congress, the Constitutional
authority, to determine that, under the existing law, you have
identified that somebody will lawfully be here so long as
they--using prosecutorial discretion, they won't be deported if
they are not a threat to National security, aren't a threat to
public safety, or aren't a threat to border security.
How can you create a class of people who are beyond
prosecution and not be violating the Constitutional separation
of powers in which Congress has clearly articulated its intent?
Secretary Johnson. Well, first, during the period of
deferred action--that is what it is, deferred action--you can
lose membership in that program if you commit a crime, for
example.
Mr. Meehan. But you can also have a lawfully articulated
ability under the President's directive to be here if you
don't. That is an expression of a Constitutional protection
that does not exist except for the President's overreach of
prosecutorial discretion.
Secretary Johnson. Congressman, this type of action has
existed in one form or another going back decades. It was
exercised in the Reagan and Bush administrations----
Mr. Meehan. No, Mr. Secretary, I will not allow you to go
there. It was exercised after authorized activity by the
Congress in which they were continuing to----
Secretary Johnson. To protect a class of people that the
Congress did not.
Mr. Meehan. No, but the Congress already clearly
articulated an intent to include those, and there was the
fulfilling of Congressional intent. Here, you have created a
class of people in contravention of Congressional intent.
Secretary Johnson. Well, first of all, an assessment of
deferred action will be made on a case-by-case basis.
Now, if I may, sir, the way I look at it is this. I know
you will appreciate this. When I was an assistant United States
attorney, we used to--and I am sure this was true in your
office when you were a U.S. attorney--we used to enter into
deferred prosecution agreements with individuals. You committed
a crime, or you may have committed a crime, you have been
charged, but if you, in effect, behave for the next 6 months,
12 months, a year, whatever, we are going to defer
prosecution----
Mr. Meehan. I understand that. My time is limited.
Secretary Johnson. That is, in effect, what we are doing
here.
Mr. Meehan. We all understand prosecutorial discretion.
This changes that, however, which creates a class of people,
despite prosecutorial discretion, who may be here because the
President created that category, not Congress. That is a clear
violation of the Constitutional principles. Apart from our
desire to work together, he is acting in a capacity beyond
where he has the ability to do so.
Secretary Johnson. Sir, I respectfully disagree.
Mr. Meehan. On what basis?
Secretary Johnson. They are present--they are lawfully
present in this----
Mr. Meehan. Lawfully? How are they lawfully here when the
intention of Congress was very clear, they can be deportable?
It doesn't mean they will be deportable----
Secretary Johnson. But, sir----
Mr. Meehan [continuing]. But now you are saying----
Secretary Johnson [continuing]. The Congress has not given
me the resources to deport 11 million people.
Mr. Meehan. I appreciate that fact.
Secretary Johnson. That does not exist. They are here.
Mr. Meehan. That is prosecutorial discretion----
Secretary Johnson. So, if I may----
Mr. Meehan [continuing]. If they are not lawfully here.
Secretary Johnson. If I may----
Mr. Meehan. We are choosing--every speeder on 95 could be
stopped, but we can't stop everyone, but that doesn't mean that
they aren't going over the speed limit. Your level says there
is no speed limit.
Secretary Johnson. If I may finish my sentence. They are
here. From my Homeland Security perspective, I want them to
come forward and get on the books and receive a work
authorization----
Mr. Meehan. Mr. Secretary, they are here, but you said they
were lawfully here. Under Congressional intent, they are not
lawfully here. Yet the President has created that category out
of whole cloth.
Secretary Johnson. This is a form of Executive Action that
was not invented in this administration. It goes back decades,
sir.
Mr. Meehan. Secretary, it was. I am sorry to disagree with
you.
Chairman McCaul. The gentleman's time has expired.
Mr. Meehan. I will work with you, but I disagree with you.
Chairman McCaul. Mr. Perry from Pennsylvania.
Mr. Perry. Thank you, Mr. Chairman.
Mr. Secretary, appreciate your service.
Is there a forged document system present that has been
operating for some time that allows illegal immigrants to avoid
the law?
Secretary Johnson. I am sorry. What was your question?
Mr. Perry. Is there a forged document system present in
some form around the border, where people that would come here
illegally obtain Social Security numbers and other documents
that provide them access to America to----
Secretary Johnson. In other words, a criminal network that
provides false----
Mr. Perry. Whatever you want to call it. Is there one
present?
Secretary Johnson. I would imagine that there is, sir.
Mr. Perry. Is using forged documents to gain access to the
Nation, employment, social services, et cetera, would we
consider that lawful?
Secretary Johnson. I do not believe so, no.
Mr. Perry. Okay. I would agree with you.
What is the DHS estimate for those here illegally,
including those with terrorist affiliations or motives, who
have used falsified documentation to gain access to our Nation
and the other things I described?
Secretary Johnson. I don't have that number off-hand, but I
can get it for you.
Mr. Perry. You have a number?
Secretary Johnson. Well, if there is such an estimate, I
will undertake to get it to you.
Mr. Perry. Okay. Listen, I am sure there is an estimate. I
am sure it is just an estimate, because they are unlawful. But
I will also say that we have written your office on several
occasions requesting information and have not gotten any
answers. So I am just concerned about the ability or your
willingness to give us those answers.
But let me just cite a couple examples for you.
We have Major League Baseball players who have become MVPs,
made millions of dollars, and after the fact we found out as
Americans that they weren't here lawfully and used forged
documents. These are very high-profile people.
An individual in California, deported three times, came
back on the fourth time and shot a police officer dead.
You have an individual that was residing in North Carolina,
came up to Baltimore, kidnapped a 13-year-old girl and raped
her. That person was here illegally and deported on numerous
occasions and used falsified--all have used falsified
documents.
To that end, Mr. Secretary, my question is: How will your
Department screen these folks, including background checks, to
ensure the security of the citizens of America? Especially when
people that don't, you know, recognize or respect the law,
terrorists, people with terrorist ties and affiliations or
motives that won't use proper documentation and won't come
forward, how can we as the American citizens be confident that
this plan to screen up to 5 million people that came here
knowingly unlawfully, in many cases--in many cases, not all,
but many--how can we have any confidence, based on those
examples that I have already cited, any confidence that your
agency and that this policy is going to work?
Secretary Johnson. Based on the experience that we had with
the program 2 years ago, I believe that we will be vigilant in
terms of looking for fraud in the application process.
The other part of my answer to your question, sir, is,
through our reprioritization, I want to get at the criminals. I
want clearer guidance so that our ERO enforcement workforce has
the ability and the capability and the resources and the time
to go after the type of individuals that you cite.
Mr. Perry. We want that, too, but, with all due respect,
Mr. Chairman, I have no confidence and I don't think the
American people have any confidence that that is going to work.
We appreciate, you know, your hope. We appreciate that with the
resources being targeting to those individuals, maybe it could
be better. But I see no plan and you have given me no plan at
this point with any specific metrics or anything like that.
We have been working on this for years. None of us want
these people in our community. I have two daughters. Heaven
forbid one of them falls prey to something like that, and I can
come to you and say, ``Well, what did you do about it?'', and
you said, ``Well, we hoped for better.'' Mr. Secretary, that is
just not an adequate answer.
Secretary Johnson. Well, that would not be----
Mr. Perry. Thank you, Mr. Chairman. I yield back.
Secretary Johnson. That would not be an accurate
characterization of my answer either.
I am happy to brief you and other Members of this committee
on the implementation plan that CIS has put together. We have
spent considerable time on it.
If you let me know the last time you sent me a letter that
was unanswered and the date, I will be sure that it is
answered.
Mr. Perry. Thank you.
Chairman McCaul. Thank you, Mr. Secretary. Let me just say
that I don't envy your position right now, but it has been a
productive hearing. I think you have been forthright in your
answers. It is a very emotional, divisive issue that I hope we
can resolve in the Congress.
I can tell you this committee--and I think the Ranking
Member feels the same way--we are committed to passing in the
next Congress a border security bill, and we look forward to
working with you on that.
Thanks for being here.
Secretary Johnson. Thank you.
Chairman McCaul. This hearing stands adjourned.
[Whereupon, at 11:16 a.m., the committee was adjourned.]
A P P E N D I X
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Questions From Honorable Susan W. Brooks for Honorable Jeh C. Johnson
Question 1. In your testimony you said, ``We encourage those
undocumented immigrants who have been here for the last 5 years, have
sons or daughters who are citizens or lawful permanent residents, and
do not fall into one of our enforcement priorities to come out of the
shadows, get on the books, and pass National security and criminal
background checks.'' In this context, please explain what you mean
exactly when you say to ``get on the books''?
Answer. Response was not received at the time of publication.
Question 2. Under the current law and before the Executive Order,
where did undocumented immigrants fit into the pipeline of those
immigrants waiting to become citizens the legal way?
Now under the Executive Order, where do undocumented immigrants who
are lawfully present fit into the pipeline of those currently waiting
to become citizens the legal way?
Answer. Response was not received at the time of publication.
Question 3. From where is USCIS getting the funds to carry out this
Executive Order?
Will resources be diverted away from those going through the legal
process of becoming a citizen to carry out this Executive Order?
Answer. Response was not received at the time of publication.