[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
DOES ADMINISTRATION AMNESTY HARM OUR EFFORTS TO GAIN AND MAINTAIN
OPERATIONAL CONTROL OF THE BORDER?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON BORDER AND
MARITIME SECURITY
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
OCTOBER 4, 2011
__________
Serial No. 112-47
__________
Printed for the use of the Committee on Homeland Security
Available via the World Wide Web: http://www.gpo.gov/fdsys/
_____
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COMMITTEE ON HOMELAND SECURITY
Peter T. King, New York, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Daniel E. Lungren, California Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Michael T. McCaul, Texas Henry Cuellar, Texas
Gus M. Bilirakis, Florida Yvette D. Clarke, New York
Paul C. Broun, Georgia Laura Richardson, California
Candice S. Miller, Michigan Danny K. Davis, Illinois
Tim Walberg, Michigan Brian Higgins, New York
Chip Cravaack, Minnesota Jackie Speier, California
Joe Walsh, Illinois Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania Hansen Clarke, Michigan
Ben Quayle, Arizona William R. Keating, Massachusetts
Scott Rigell, Virginia Kathleen C. Hochul, New York
Billy Long, Missouri Janice Hahn, California
Jeff Duncan, South Carolina
Tom Marino, Pennsylvania
Blake Farenthold, Texas
Robert L. Turner, New York
Michael J. Russell, Staff Director/Chief Counsel
Kerry Ann Watkins, Senior Policy Director
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
------
SUBCOMMITTEE ON BORDER AND MARITIME SECURITY
Candice S. Miller, Michigan, Chairwoman
Mike Rogers, Alabama Henry Cuellar, Texas
Michael T. McCaul, Texas Loretta Sanchez, California
Paul C. Broun, Georgia Sheila Jackson Lee, Texas
Ben Quayle, Arizona, Vice Chair Brian Higgins, New York
Scott Rigell, Virginia Hansen Clarke, Michigan
Jeff Duncan, South Carolina Bennie G. Thompson, Mississippi
Peter T. King, New York (Ex (Ex Officio)
Officio)
Paul Anstine, Staff Director
Diana Bergwin, Subcommittee Clerk
Alison Northrop, Minority Subcommittee Director
C O N T E N T S
----------
Page
Statements
The Honorable Candice S. Miller, a Representative in Congress
From the State of Michigan, and Chairwoman, Subcommittee on
Border and Maritime Security:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Henry Cuellar, a Representative in Congress From
the State of Texas, and Ranking Member, Subcommittee on Border
and Maritime Security.......................................... 5
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security.............................................. 11
Witnesses
Chief Michael J. Fisher, Border Patrol, Customs and Border
Protection, Department of Homeland Security:
Oral Statement................................................. 14
Prepared Statement............................................. 16
Kumar C. Kibble, Deputy Director, Immigration and Customs
Enforcement, Department of Homeland Security:
Oral Statement................................................. 20
Prepared Statement............................................. 22
Ruth Ellen Wasem, Ph.D., Specialist in Immigration Policy,
Congressional Research Service:
Oral Statement................................................. 27
Prepared Statement............................................. 28
For the Record
The Honorable Henry Cuellar, a Representative in Congress From
the State of Texas, and Ranking Member, Subcommittee on Border
and Maritime Security:
Letter......................................................... 7
Slide.......................................................... 10
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Bill Excerpt................................................... 12
Slide.......................................................... 41
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas
Article........................................................ 47
DOES ADMINISTRATION AMNESTY HARM OUR EFFORTS TO GAIN AND MAINTAIN
OPERATIONAL CONTROL OF THE BORDER?
----------
Tuesday, October 4, 2011
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Border and Maritime Security,
Washington, DC.
The subcommittee met, pursuant to call, at 10:02 a.m., in
Room 311, Cannon House Office Building, Hon. Candice S. Miller
[Chairwoman of the subcommittee] presiding.
Present: Representatives Miller, McCaul, Quayle, Rigell,
Duncan, Cuellar, Jackson Lee, Clarke, and Thompson.
Mrs. Miller. I am going to call the committee to order.
Before I start my, I guess, sort-of more formal opening
statement, I think we need to congratulate the men and women of
our terrorist community for their outstanding work on
capturing--or, excuse me, killing the terrorist, Anwar al-
Awlaki, last week. It was certainly wonderful, wonderful news
for everyone who is a fighter for freedom; it was a big blow to
the enemies of freedom, al-Qaeda.
Being from Detroit, we were aware of his involvement with
the Christmas day bomber, and the Times Square bomber, and so
many others. Many people have said that he was a greater threat
to our country, actually, than Osama bin Laden. So I think we,
since we all sit on the Homeland Security Committee, we should
recognize the death of this very vile terrorist removes a huge,
enormous threat from our Nation.
Securing our Nation's border is certainly one of the
principal responsibilities of the Federal Government, and it is
foremost on this subcommittee's agenda. Over the last 9 months
this year we have examined the concept of operational control
at a number of our committee meetings, and really what it means
in terms of how secure or how open our border actually is.
As the Border Patrol points out correctly, we have a
layered approach to border security that begins at the border,
but it doesn't end at the border. Interior checkpoints, bus,
and other transportation checks are also very valuable tools to
reduce the number of illegal aliens that enter the country.
The last line of defense, as we work to control the
integrity of the border, is interior enforcement, and this
hearing is intended to examine the impact of the
administration's recent decision to more leniently apply
prosecutorial discretion and how it will affect the Border
Patrol's ability to gain and maintain operational control of
the border. I am very concerned--I know others are, as well--
that the message that this administration is sending will lead
to strains on the Border Patrol's resources as potential
illegal immigrants may surge across the border, making it much
more difficult for the Border Patrol.
What is troubling is that the administration has offered
literally hundreds of thousands of illegal aliens
administrative amnesty through a series of memos and letters.
The Department of Homeland Security and the Department of
Justice have decided to review every single case in the removal
pipeline to weed out non-criminals and criminal aliens who
haven't committed the most serious crimes, and then
indefinitely close and ignore those cases that don't meet that
threshold.
I think when you have the potential to administratively
close hundreds of thousands of removal cases it sends a
message, and that message is clear: That if you make it past
the border you are scot-free and that you can stay here despite
breaking our immigration laws unless you commit a serious
crime, and even then there is no guarantee that these illegal
aliens will be deported and sent back to their home. So this
action by the administration is clearly administrative amnesty.
Certainly, I am a strong supporter of Secure Communities, a
program that removes thousands of dangerous criminals from our
streets every year. I certainly congratulate the men and women
of ICE for the excellent work that they do to remove criminals,
visa violators, and certainly recent border-crossers.
I would remind my colleagues that every single person who
crosses the border illegally has, in fact, committed a crime,
and we cannot send the message that unless you break the social
contract and commit serious crimes we will not bother with the
effort to deport you. We are either a Nation of laws or we are
not, and telling illegal aliens that we are really not looking
for them unless they commit additional serious crimes is a
mistake, I believe, and will only serve to encourage more
illegal immigration, and again, as a result, will make the job
of Border Patrol agents charged with defending the Nation that
much harder.
Our country has made a series of mistakes, I think, when it
comes to immigration reform, without serious border security
and serious interior enforcement. In every instance where we
have either offered amnesty or even had a serious policy
discussion about it people have responded and a surge of
illegal aliens cross the border to take advantage. We saw that
in 1986; we saw it again in 2006; we saw it in 2007.
Instead of offering incentives for people to break the law
we should be making it more difficult to cross the border and
even harder to get a job once they are here illegally. Doing
anything else, I think, is less a slap in the face to honest
immigrants who do the right thing, who wait in line, who fill
out the paperwork, pay the associated fees, learn English, and
become naturalized according to our laws.
Administration officials like to point to the number of
apprehensions as an indicator of the success of their
enforcement efforts, but I think this comparison is a bit
disingenuous, because really the poor state of the American
economy is a driving force behind the current low apprehension
numbers and the lack of people trying to cross the border.
Telling the American people that the border is more secure than
ever--I don't believe that. I think the reality is--in fact,
according to the Mexican Migration Project, nearly 97 percent
of all the illegal immigrants who try to cross the border
eventually succeed, which is a startling number.
Estimates do vary, but we do have somewhere in the
neighborhood of 11 million to 12 million illegal aliens living
in the United States and we remove only 400,000 each year. So
the already low prospect of being deported is now being further
reduced by this administration's misguided attempts to
circumvent the legislative process.
If the President wants to change the law he needs to submit
a proposal to Congress. Article 2, Section 3 of the
Constitution states that the President shall take care that the
laws be faithfully executed. Not enforcing key aspects of the
law is not consistent with that section of the Constitution.
We need to have a strategy to secure the border and for
administration officials to be honest and candid with the
Congress about the resources that it needs. But unfortunately,
we get insufficient answers and an administration that
circumvents the legislative process to grant administrative
amnesty to thousands of illegal aliens.
I think it is past time that we come up with a plan to
secure our border instead of sending signals that make gaining
and maintaining operational control of our borders even more
difficult. I certainly look forward to hearing the testimony of
all of our witnesses and appreciate them all coming today as we
talk about operational control of our borders.
[The statement of Mrs. Miller follows:]
Prepared Statement of Chairwoman Candice S. Miller
October 4, 2011
Securing the Nation's border is one of the principal
responsibilities of the Federal Government, and is foremost on this
subcommittee's agenda. Over the past 9 months, we have examined the
concept of Operational Control and what that means in terms of how
secure or open the border really is.
As the Border Patrol rightly points out, we have a layered approach
to border security that begins at the border, but does not end there.
Interior checkpoints, bus and other transportation checks are also
valuable tools to reduce the number of illegal aliens that enter the
country. The last line of defense as we work to control the integrity
of the border is interior enforcement.
This hearing is intended to examine the impact of the
administration's recent decision to more leniently apply prosecutorial
discretion and how it will affect the Border Patrol's ability to gain
and maintain operational control of the border. I am concerned that the
message this administration is sending may lead to strains on the
Border Patrol's resources as potential immigrants may surge across the
border, making it more difficult for the Border Patrol to identify
smugglers, criminals, and potential terrorists.
What is troubling is that this administration, under the guise of
lacking resources, has offered hundreds of thousands of illegal aliens
administrative amnesty through a series of memos and letters. Now, I'm
sure that you'll hear them take issue with that term. But the
Department of Homeland Security and Department of Justice have decided
to review every single case in the removal pipeline to weed out non-
criminals, and criminal aliens who haven't committed the most serious
crimes and then indefinitely close and ignore those cases that don't
meet their threshold, I am honestly not sure what else to call it.
And what about those people whose cases are closed? They will not
be removed, and will probably receive work authorization from the
Citizenship and Immigration Services. So, if they aren't being deported
and they have the potential to work legally in the United States that
sounds an awful like amnesty to me!
When you have the potential to administratively close hundreds of
thousands of removal cases it sends a message and that message is
crystal clear: If you make it past the border, you are scot-free and
can stay here, despite breaking our immigration laws, unless you commit
a serious crime. Even then there is no guarantee that those illegal
aliens will be deported and sent back to their home.
I continue to be a strong supporter of Secure Communities, a
program that removes thousands of dangerous criminal from our streets
every year. I congratulate the men and women of ICE for the excellent
work that they do to remove criminals, visa violators, and recent
border crossers. Contrary to some critics, they do a good job at just
that. But this is just half of the story.
I would like to remind my colleagues that every single person who
crosses the border illegally has committed a crime, and we cannot
ignore that fact or sweep it under the rug. We cannot send the message
that unless you break the social contract and commit serious crimes, we
will not bother with the effort to deport you.
Either we are a Nation of laws or we are not--it is just that
simple. Telling illegal aliens that we are not really looking for them
unless they commit additional serious crimes is a tragic mistake and
will only serve to encourage more illegal immigration, and as a result,
will make the job of Border Patrol agents charged with defending the
Nation that much harder.
Taking a look at the series of mistakes we have made when it comes
to immigration reform without serious border security and serious
interior enforcement makes my head spin. In every instance where we
have either offered amnesty, or even had a serious policy discussion
about it, people have responded--and a surge of illegal aliens cross
the border to take advantage.
We saw that in 1986 and we saw it again in 2006 and 2007. Instead
of offering incentives for people to break the law we should be making
it more difficult to cross the border and even harder to get a job once
they are here illegally. Doing anything less is a slap in the face to
honest immigrants who do the right thing, wait in line, fill out paper
work, pay the associated fees, learn English, and become naturalized
according to the law.
Administration officials like to point to the number of
apprehensions as an indicator of the success of their enforcement
efforts, but this comparison obscures the truth--the poor state of the
American economy is the driving force behind the current low
apprehension numbers and the lack of people trying to cross the border.
Telling the American people that the border is more secure than
ever is, at best, a disservice; the reality is that, according to the
Mexican Migration Project, nearly 97% of illegal immigrants who try to
cross the border eventually succeed.
I'm not sure about you, but that isn't what I call a country that
has control of its borders.
Estimates vary, but we have somewhere in the neighborhood of 11-12
million illegal aliens living in the United States, and we remove only
400,000 each year, so the already low prospect of being deported is now
being further reduced by this administration's misguided attempts to
circumvent the legislative process. If the President wants to change
the law, then he needs to submit a proposal to Congress.
Last time I checked, Article II Section 3 of the Constitution
states that the President ``shall take care that the laws be faithfully
executed.'' Not enforcing key aspects of the law is not consistent with
that section of the Constitution.
What I have continually called for is a strategy to secure the
border and for administration officials to be honest and candid with
Congress about their resource needs, but instead we get more of the
same--insufficient answers and an administration that circumvents the
legislative process to grant administrative amnesty to thousands of
illegal aliens.
It is well past time that we come up with a plan to secure the
border instead of sending signals that make gaining and maintaining
operational control even more difficult. I look forward to hearing from
our witnesses how lax enforcement may hinder efforts to gain
operational control of the border.
Mrs. Miller. At this time the Chairwoman would recognize
the Ranking Member, Mr. Cuellar, for his opening statement.
Mr. Cuellar. Thank you so much, Madam Chairwoman, for
holding this meeting.
First of all, I have a housekeeping matter. I believe the
House rules call that witnesses are supposed to turn in their
testimonies 48 hours before. I understand that our friend,
Chief Fisher, turned his testimony at 8:43 p.m. Is that
correct? Who would know that? Is that correct? Okay.
Again, I would ask the witnesses to turn their testimony in
on time. I believe last time a Chief was here, officially was
with us, he said he had about 250 Border Patrol agents that
could be on the border but he had them at headquarters; I don't
know if they can help him put this little testimony together,
but I would ask that we adhere by the rules on testimony.
Madam Chairwoman, I would like to start off with the
hearing with some basic figures related to illegal immigration
in the United States. There are currently an estimated 11.2
million undocumented aliens in this country.
At present, ICE has the resources to remove approximately
400 undocumented aliens annually. You do not have to be a
mathematician to see that there is an enormous discrepancy
between the scale of illegal immigration issue and the
resources available to address this.
Faced with this reality, ICE has made a reasonable decision
to prioritize its resources to remove undocumented aliens who
pose a threat to National security, public safety, or our
immigration system first and foremost. When I come from this
kind of smart use of limited resources is called good
Government.
After all, wouldn't you rather remove someone with
potential ties to terrorism before an elderly person? Why
wouldn't you remove a gang member before you remove a pregnant
woman? Why wouldn't you remove someone with a history of DUI
before a child?
This kind of prioritization should be common sense. If the
use of prosecutory discretion is unique neither to the current
administration nor to ICE. Past administrations have made
similar choices when faced with circumstances.
Members, I would ask you to take a look at--there is the
list of memos that have been turned in since 1979--I believe
July 15, 1976 to the present time--both under Democrat and
Republican administrations that have used prosecutorial
discretions--both Democrats and Republicans, even under the
last administration, my friend, George Bush. Law enforcement
officials have used this--and one more thing, before I go--move
from the--from this memos--there is also a letter dated
November 8, 1999, signed by Democrats and Republicans--in fact,
some Members from this committee--that are asking for
prosecutorial discretion. Let me give you a list of some
Members that you might recognize: Henry Hyde, Lamar Smith, Bill
Burton--I mean, Bill Barriz--you have Brian Bilbray, Nathan
Deal, David Dreier, James McGovern, James Sensenbrenner, and
Sam Johnson--I don't see Michael McCaul; you weren't here in
1999--Lincoln Diaz-Balart, and I go on.
[The information follows:]
Mr. Cuellar. These are Members, both Democrats and
Republicans, and some folks that are taking a very strong
position against prosecutorial Members. This is a letter sent
off to Janet Reno and to Doris Meissner, the commissioner of
INS at that time, dated November 8, 1999, that are asking for
prosecutorial discretion. Again, I would ask you--I would be
happy to share the copies of the memos both under the Bush
administration, Reagan administration, all the way down to the
Jimmy Carter administration.
As I mentioned, law enforcement agencies around the
country, both Federal, State, and local, utilize the
enforcement tool--this enforcement tool to ensure that they get
the worst of the worst off our streets. There is a certain
irony to the fact that ICE's commitment to removing
undocumented aliens has been called into question when this
administration has removed more undocumented aliens annually
than any of its predecessors.
Members, I would ask you to take a look at the PowerPoint
up there, and you will see, from 2001 we were removing criminal
aliens that were removed from the United States at about
73,000--a little bit over 73,000. In 2008, the last year of the
Bush administration, we removed 105,266.
[The information follows:]
Mr. Cuellar. Then you move into 2009, 2010, 2011, under the
Obama administration. In 2009, 131,840--you can see a jump from
the past administration--that were actually removed. In 2010,
168-plus that were actually removed, a jump from the prior
administration. In 2011 you have 202,169 that were actually
removed.
In fact, if we keep going, in 2001, in 3 years we would
remove more criminal aliens than the last 8 years under the
Bush administration. This includes, again--and this includes,
also, numbers when you look at--including the undocumented
aliens--not only criminal aliens, but undocumented aliens,
also.
Recently, as part of ICE Operation Cross Check, DHS
announced the identification and arrest of over 2,900 convicted
criminal aliens; 1,600 of them were--that were arrested were
murderers, kidnappers, drug traffickers, child predators,
rapists, gang members, and convicted sex offenders. This is a
fundamental example of smart, focused, effective immigration
enforcement that we have.
I would ask that during this substantial budget cuts that
we look and allow ICE to continue to exercise their law
enforcement discretion to place priority on identifying,
arresting, and removing immigration fugitives. I certainly want
to commend, Madam Chairwoman, the work of our ICE folks, and
certainly Director Morton, for the work that he has done.
Finally, the last thing I would just make to conclude is,
as a Member, again, from the border I would have to denote
that--note that I disagree with the title of today's hearing.
The hearing title implies that there is amnesty for border
crossing when, in fact, we continue to have a zero tolerance
policy. In fact, in the Laredo area of the Border Patrol and
the Del Rio area, it used to be that people that would cross
would be sent back, but under a 1954 law we are now saying that
they would have to spend some time in a detention--in jail--for
doing that. That is something that we just started doing in
Texas.
Finally, the border crossing and immigration violators are
specifically prioritized for removal under the ICE policy.
Again, we would have to be careful from using amnesty, because
if not, I am afraid that we could cause a possible magnet
effect of this member--of this border security, and then this
misinformation would say, ``You know what, in the United States
there is some amnesty involved,'' so we would have to be very
careful.
I do not believe in amnesty. I don't believe that what
Ronald Reagan and the Democrats did in 1986 created amnesty. I
don't agree with that.
I certainly want to thank Madam Chairwoman for having this
hearing so we can talk about this important issue, and
certainly want to thank all the witnesses for being here today.
I yield back the balance of my time.
Mrs. Miller. The Chairwoman now recognizes the Ranking
Member of the Full Committee, the gentleman from Mississippi,
Mr. Thompson, for his statement.
Mr. Thompson. Thank you very much, Madam Chairwoman. I
appreciate the hearing. I appreciate our witnesses who are also
here today.
But let me start by addressing the title of today's
hearing, ``Does Administrative Amnesty Harm Our Efforts to Gain
and Maintain Operational Control of the Border?'' I find it
curious that a practical, risk-based approach to removal of
undocumented aliens would be characterized by my friends across
the aisle as administrative amnesty. This is not a legal term,
but a political one.
Typically, the smart and efficient use of Government
resources garner bipartisan praise and support in this town.
What is ICE doing under the Obama administration that is
different than what it or its predecessor, INS, did under
previous administrations?
ICE is prioritizing its limited resources to ensure that
the agency removes undocumented aliens who pose a danger to
National security or a risk to public safety, along with recent
illegal entrants. Currently, ICE only has the resources
necessary to remove approximately 400,000 undocumented aliens.
Madam Chairwoman, I would like to offer for the record a
copy of the Homeland Security appropriations measure where
every Member of this subcommittee voted for this very same
program to the tune of $1.6 billion.
Mrs. Miller. Without objection.
[The information follows:]
H.R. 2017 EH
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
Salaries and Expenses
For necessary expenses for enforcement of
immigration and customs laws, detention and removals,
and investigations; and purchase and lease of up to
3,790 (2,350 for replacement only) police-type
vehicles; $5,522,474,000 (increased by $1,000,000)
(reduced by $1,000,000) (increased by $1,000,000)
(reduced by $5,000,000) (increased by $5,000,000), of
which not to exceed $7,500,000 shall be available until
expended for conducting special operations under
section 3131 of the Customs Enforcement Act of 1986 (19
U.S.C. 2081); of which not to exceed $15,000 shall be
for official reception and representation expenses; of
which not to exceed $2,000,000 shall be for awards of
compensation to informants, to be accounted for solely
under the certificate of the Secretary of Homeland
Security; of which not less than $305,000 shall be for
promotion of public awareness of the child pornography
tipline and activities to counter child exploitation;
of which not less than $5,400,000 (increased by
$1,000,000) shall be used to facilitate agreements
consistent with section 287(g) of the Immigration and
Nationality Act (8 U.S.C. 1357(g)); and of which not to
exceed $11,216,000 shall be available to fund or
reimburse other Federal agencies for the costs
associated with the care, maintenance, and repatriation
of smuggled aliens unlawfully present in the United
States: Provided, That none of the funds made available
under this heading shall be available to compensate any
employee for overtime in an annual amount in excess of
$35,000, except that the Secretary, or the designee of
the Secretary, may waive that amount as necessary for
National security purposes and in cases of immigration
emergencies: Provided further, That of the total amount
provided, $15,770,000 shall be for activities to
enforce laws against forced child labor, of which not
to exceed $6,000,000 shall remain available until
expended: Provided further, That of the total amount
available, not less than $1,600,000,000 shall be
available to identify aliens convicted of a crime who
may be deportable and aliens who may pose a serious
risk to public safety or National security who may be
deportable, and to remove them from the United States
once they are judged deportable, of which $194,064,000
shall remain available until September 30, 2013:
Provided further, That the Assistant Secretary of
Homeland Security for U.S. Immigration and Customs
Enforcement shall report to the Committees on
Appropriations of the Senate and the House of
Representatives, not later than 45 days after the end
of each quarter of the fiscal year, on progress in
implementing the preceding proviso and the funds
obligated during that quarter to make such progress:
Provided further, That the Secretary shall prioritize
the identification and removal of aliens convicted of a
crime by the severity of that crime: Provided further,
That the funding made available under this heading
shall maintain a level of not less than 34,000
detention beds through September 30, 2012: Provided
further, That of the total amount provided, not less
than $2,750,843,000 is for detention and removal
operations, including transportation of unaccompanied
minor aliens: Provided further, That of the total
amount provided, $10,300,000 shall remain available
until September 30, 2013, for the Visa Security
Program: Provided further, That none of the funds
provided under this heading may be used to continue a
delegation of law enforcement authority authorized
under section 287(g) of the Immigration and Nationality
Act (8 U.S.C. 1357(g)) if the Department of Homeland
Security Inspector General determines that the terms of
the agreement governing the delegation of authority
have been violated: Provided further, That none of the
funds provided under this heading may be used to
continue any contract for the provision of detention
services if the two most recent overall performance
evaluations received by the contracted facility are
less than ``adequate'' or the equivalent median score
in any subsequent performance evaluation system: Pro-[
. . . ]
Mr. Thompson. That constitutes, in its form, less than 4
percent of the estimated illegal alien population in the United
States. Unless and until Congress appropriates sufficient funds
for ICE to apprehend and remove every undocumented alien in the
country we should support the agency's efforts to focus its
limited resources on removing those undocumented aliens who
pose the greatest threat to our Nation.
Indeed, on the topic of appropriations, as I have already
said, the Republican homeland security appropriation bill,
approved by the House this session, cuts rather than increases
ICE's budget. All but one of the Republican colleagues on this
subcommittee voted in favor of those cuts.
As I said before, Madam Chairwoman, our Republican
colleagues tend to talk tough when it comes to homeland
security and immigration enforcement, but rarely do they put
their money where their mouth is.
Also, it is worth noting that under the current
administration ICE has removed more criminal aliens and more
aliens total than under the Bush administration or any other
prior administration, Democrat or Republican. Only in
Washington, DC, could those kinds of figures somehow be spun as
amnesty.
Ironically, the last real amnesty was championed by
President Ronald Reagan, a hero to many of my Republican
colleagues. Yet, today it appears that even the largest number
of removals of undocumented immigrants in our Nation's history
is not enough to satisfy some.
With that, Madam Chairwoman, I would like to welcome our
distinguished panel of witnesses. I look forward to hearing
them today, and I am certain that they will provide the Members
of this subcommittee valuable insight into the complex issue of
immigration enforcement.
I yield back the balance of my time.
Mrs. Miller. I thank the gentleman for his comments. Other
Members of the committee are reminded that opening statements
might be submitted for the record.
I am going to introduce all three of our guests, and then
we will start with the chief.
Chief Michael Fisher was named the chief of the U.S. Border
Patrol in May of last year. He started his duty along the
Southwest Border in 1987, in Douglas, Arizona.
He successfully completed the selection process for the
Border Patrol Tactical Unit, BORTAC, in 1990, and was later
selected as field operations supervisor for the tactical unit.
Following this, he served as the deputy chief patrol agent for
the Detroit sector, and as an assistant chief patrol agent in
Tucson, Arizona.
We welcome you, Chief.
Deputy Director Kibble is the deputy director for U.S.
Immigration and Customs Enforcement, also known as ICE, of
course. Prior to this assignment, Mr. Kibble served in several
key leadership roles at ICE headquarters.
His field assignments included service as a group
supervisor and assistant special agent in charge of the
metropolitan Los Angeles, California area. He also served as
the special agent in charge of HSI's regional field office, in
Denver, responsible for 17 offices in Colorado, Montana, Utah,
and Wyoming.
Dr. Ruth Ellen Wasem is a specialist in immigration policy
with the Congressional Research Service, CRS, Library of
Congress, and in that capacity she has written reports for
Congress that provide research and policy analysis on a range
of immigration subjects, including on asylum, family and
employment-based permanent immigration, naturalization, non-
immigrant admissions, non-citizen eligibility for public
assistant ends, as well as visa policy. Dr. Wasem completed her
doctorate in history at the University of Michigan, and she
also has an M.A. in history from the University of Michigan.
So we welcome all of you. As you heard from our opening
statements, there is rather a divergence of opinion on the
committee here, of whether or not this is administrative
amnesty and whether or not the policy recently adopted by the
administration is the proper way to proceed.
One of our, obviously, biggest functions of Congress is to
provide Congressional oversight into your various agencies and
departments as well as the policy that comes from the Executive
Branch, and so that really is the purpose of the committee
today.
With that, we would have the floor to Chief Fisher, and
again, welcome you back to the committee, and look forward to
your testimony, sir.
STATEMENT OF CHIEF MICHAEL J. FISHER, BORDER PATROL, CUSTOMS
AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY
Chief Fisher. Thank you.
Chairwoman Miller, Ranking Member Cuellar, and
distinguished Members of the subcommittee, it is, indeed, my
privilege and honor to appear before you again today. The
border is a far different place today than it was when I began
my career with the Border Patrol. I have personally witnessed
the evolution of the border over the past 24 years, both in
terms of additional resources applied against the threat as
well as changes in the smugglers' tactics and their attempts to
exploit our border.
In fiscal year 2011, just ending, the Border Patrol made
approximately 340,000 arrests, compared to 10 years ago, when
the number of arrest totaled approximately 1.6 million.
Although we have seen positive indicators of a more secure
border our work continues, and that work will not end as long
as those who seek to enter this country illegally.
With the assistance of Congress, we have seen unprecedented
influx of resources, and as a result we are currently at a
pivot point in our strategic thinking. The Border Patrol
remains committed to carrying out the laws enacted by Congress
to the fullest extent possible. Our commitment to border
security and that mission will not waiver.
We know from experience that targeted enforcement works.
Over the past few years we have developed effective strategies
to disrupt and dismantle smuggling organizations and their
distribution networks, leading to a safe border.
Operations and initiatives, such as Operation Streamline,
the Alien Transfer Exit Program, the Mexican Interior
Repatriation Program, and the Operation Against Smugglers
Initiative on Safety and Security, are focused on delivering
targeted consequences to those offenders, thus breaking the
smuggling cycle. Collectively, they represent the consequence
delivery system that aids the overarching effort to improve the
safety and security of our border, evidenced by reductions in
both recidivism and reapprehension this past year.
Understanding the greatest risk lies along our border is
critical to our flexibility in addressing these risks. As CBP
applies targeted enforcement to areas of evolving threat,
mobile response capability is critical through timely and
effective resolution.
Now, CBP does not own the corner market in our National
security efforts. We have learned that it requires a whole-of-
Government approach and law enforcement, each with our own
duties, responsibilities, jurisdictional authorities, and at
all levels of Government.
We have gained a greater appreciation for the
differentiation between mere collaboration and operational
integration with our Federal, State, local, Tribal, and
international partners. The key to a safe and secure border
lies in the strength of joint planning and execution towards
common objectives. Our path forward and our strategy will be
risk-based.
We will increasingly depend on information and intelligence
to describe the intent and capabilities of the opposition,
defining the threat while continuously accessing our border
vulnerabilities. We will train and deploy the workforce to be
more mobile, agile, and flexible against all threats.
Thank you for the opportunity to testify today. I look
forward to your questions.
[The statement of Chief Fisher follows:]
Prepared Statement of Michael J. Fisher
October 4, 2011
introduction
Chairwoman Miller, Ranking Member Cuellar, and distinguished
Members of the committee, it is a privilege and an honor to appear
before you today to discuss U.S. Customs and Border Protection's (CBP)
efforts to secure our Nation's borders. I am Michael J. Fisher, Chief
of the United States Border Patrol (USBP).
As America's front-line border agency, CBP's priority mission is to
protect the American public, while facilitating lawful travel and
trade. To do this, CBP has deployed a multi-layered, risk-based
approach to enhance the security of our borders while facilitating the
flow of lawful people and goods entering the United States. This
layered approach to security reduces our reliance on any single point
or program that could be compromised. It also extends our zone of
security outward, ensuring that our physical border is not the first or
last line of defense, but one of many.
overview of border security efforts
Over the past 2 years, the Department of Homeland Security (DHS)
has dedicated historic levels of personnel, technology, and resources
to the Southwest border. We have more than doubled the size of the
Border Patrol since 2004; tripled the number of Border Liaison Officers
working with their Mexican counterparts; doubled personnel assigned to
Border Enforcement Security Task Forces; and began screening southbound
rail and vehicle traffic for the illegal weapons and cash that are
helping fuel the cartel violence in Mexico. CBP also received approval
from the U.S. Department of Transportation's Federal Aviation
Administration to increase the miles of airspace available for Unmanned
Aircraft System (UAS) operations, enabling CBP to deploy UASs from the
eastern tip of California extending east across the border into Texas--
covering the entire Southwest border for the first time. Further, in
January of this year, CBP's operational airspace along the Northern
border expanded by nearly 900 miles, allowing CBP UAS operations from
the Lake-of-the-Woods region in Minnesota, to the vicinity of Spokane,
Washington.
In addition, we have now constructed 650 miles of fencing out of
nearly 652 miles where Border Patrol field commanders determined it was
operationally required along the Southwest border, including 299 miles
of vehicle barriers and 351 miles of pedestrian fence. We have also
improved our technological capabilities, including the installation of
remote video surveillance cameras in the Detroit and Buffalo Sectors,
among other technologies.
Further, the Southwest border security supplemental legislation
(based on the administration's recommendations) was signed into law in
August 2010. It provided DHS additional capabilities to secure the
Southwest Border at and between our ports of entry and to reduce the
illicit trafficking of people, drugs, currency, and weapons.
Specifically, this bill provided funding for improved tactical
communications systems along the Southwest border; two additional CBP
unmanned aircraft systems; 1,000 new Border Patrol agents; 250 new CBP
officers at ports of entry; and two new forward operating bases to
improve coordination of border security activities.
In addition, President Obama recently authorized the extension of
the use of 1,200 National Guard troops through December 31, 2011 at the
Southwest border to contribute additional capabilities and capacity to
assist law enforcement agencies, and as a bridge to longer-term
enhancements while the administration brings new assets online and
pursues additional people, technology, and infrastructure dedicated to
effective border management and security. These National Guard troops
are providing Entry Identification Teams and criminal investigation
analysts in support of these efforts. That support is allowing DHS to
bridge the gap and hire the additional agents to support Southwest
Border enforcement efforts, and the Departments of Defense and Homeland
Security agreed to equally fund the National Guard deployment's cost.
However, Congress did not approve DHS' reprogramming requests, and the
Department of Defense has covered the full cost of this National Guard
support.
whole-of-government approach
Our overarching border security efforts require a whole-of-
Government approach that emphasizes the importance of joint planning
and intelligence sharing. In recent months, we have taken additional
steps to bring greater unity to our enforcement efforts, to expand
coordination with other agencies, and to improve response times. In
February, we announced the Arizona Joint Field Command--an
organizational realignment that brings together Border Patrol, Air and
Marine, and Field Operations under a unified command structure to
integrate CBP's border security, commercial enforcement, and trade
facilitation missions to more effectively meet the unique challenges
faced in the Arizona area of operations.
Another example of our collaborative efforts along the Southwest
Border is the Alliance to Combat Transnational Threats (ACTT) in
Arizona. The ACTT is enforcement collaboration, established in
September 2009, which leverages the capabilities and resources of more
than 60 Federal, State, local, and Tribal agencies in Arizona and the
Government of Mexico to combat individuals and criminal organizations
that pose a threat to communities on both sides of the border. Through
ACTT, we work with our international, Federal, State, local, and Tribal
law enforcement partners to increase collaboration; to enhance
intelligence and information sharing; and to develop coordinated
operational plans that strategically leverage the unique missions,
capabilities, and jurisdictions of each participating agency. Since its
inception, ACTT has resulted in the seizure of more than 2.2 million
pounds of marijuana, 8,200 pounds of cocaine, and 2,700 pounds of
methamphetamine; the seizure of more than $18 million in undeclared
U.S. currency and 343 weapons; over 16,000 aliens denied entry to the
United States at Arizona ports of entry due to criminal background or
other disqualifying factors; and approximately 342,000 apprehensions
between ports of entry.
In partnership with DEA, and with support from the Department of
Defense, DHS has achieved initial operational capability for the new
Border Intelligence Fusion Section (BIFS) as part of the El Paso
Intelligence Center. This new section will integrate and synthesize all
available Southwest border intelligence from Federal, State, local, and
Tribal partners to create a common intelligence picture to support
border enforcement activities on the Southwest border. By disseminating
real-time operational intelligence to our law enforcement partners in
the region, BIFS will streamline and enhance coordinated Federal,
State, local, and Tribal operations along the border. Additionally, we
are continuing to work with Mexico to develop a cross-border
communications network that will improve our ability to coordinate law
enforcement and public safety issues.
Along the Northern Border, CBP has established the Operational
Integration Center (OIC), located at Selfridge Air National Guard Base
in Harrison Township, Michigan. The OIC is a demonstration project
aimed at enhancing border security and situational awareness for CBP
and its mission partners along a critical area of the Northern Border
by integrating personnel and technology. In terms of personnel, the OIC
allows for a collaborative work area and communications capabilities
for all components of CBP, the U.S. Coast Guard, other DHS entities,
Federal law enforcement agencies, State and local law enforcement, and
appropriate Canadian agencies. The OIC brings together information
feeds, including radar and camera feeds, blue force tracking, database
query from databases not previously available to CBP, remote sensor
inputs, Remote Video Surveillance Systems, and Mobile Surveillance
Systems feeds, and video from various POE, tunnel and local traffic
cameras. This personnel and technology integration may serve as a model
for technology deployments on the Northern Border.
CBP is engaged with several National initiatives which all
contribute to the border security mission. Our officers and agents
provide support to the Integrated Border Enforcement Teams (IBET) which
operates as intelligence-driven enforcement teams comprised of U.S. and
Canadian federal, state/provincial and local law enforcement personnel.
By incorporating integrated mobile response capability (air, land,
marine), the IBETs provide participating law enforcement agencies with
a force multiplier--maximizing border enforcement efforts. Our
personnel additionally provide manpower to Border Enforcement Security
Task Force (BEST) units, multi-agency teams which collaborate to
identify, disrupt, and dismantle criminal organizations which pose
significant threats to border security.
In addition to these efforts, Operation Stonegarden (OPSG) grants
are available and designed to support State, local, and Tribal law
enforcement agencies that are involved in border security. While the
grants themselves are managed by the Federal Emergency Management
Agency, the participating agencies are required to submit operations
orders to the Border Patrol. The Border Patrol is responsible for
ensuring that all operations funded by this grant have a direct nexus
to border security.
CBP has also partnered with State and local law enforcement for
certain outbound operations at POEs. Over the years, the personnel at
the POEs along the Southwest Border have developed good working
relationships with State and local law enforcement agencies. State and
local law enforcement officers are a tremendous asset to CBP. They act
as force multipliers, bringing their knowledge of the community, and
their understanding of local criminal elements. Joint outbound
operations target proceeds, firearms, ammunition, stolen vehicles, and
fugitives.
Additionally, a Processing, Exploitation, and Dissemination cell
has been established at the Air and Marine facilities in Riverside,
California, and Grand Forks, North Dakota, to provide essential
information to law enforcement across the Nation--increasing
understanding of evolving threats and providing the foundation for law
enforcement entities to exercise targeted enforcement in the areas of
greatest risk. This intelligence-driven approach prioritizes emerging
threats, vulnerabilities and risks, greatly enhancing our border
security efforts.
Building on a legacy initiative, in 2005, CBP created a robust
Information Sharing Environment known as ``BigPipe'', which links
equipped CBP aviation assets, via the internet and information sharing
protocols, to Federal, State, local, and Tribal law enforcement
agencies in order to provide near-real time video and sensor data--
enhancing the situational awareness of officers across the law
enforcement community. Additionally, BigPipe is used extensively by
numerous Federal, State, local, and Tribal agencies during warrant
presentations, controlled deliveries, search and rescue, and
surveillance operations.
consequence delivery system
CBP conducts operations along the entirety of the nearly 2,000
miles of border between Mexico and the States of California, Arizona,
New Mexico, and Texas. The ability of the Border Patrol, U.S.
Immigration and Customs and Enforcement (ICE), our strategic partners,
and the judicial system to impose consequences on those entering the
United States illegally varies greatly between each State, judicial
district, and Border Patrol sector.
To break the smuggling cycle and deter a subject from attempting
further illegal entries or participating in a smuggling enterprise, CBP
has developed, with the support of ICE, a new Consequence Delivery
System (CDS) that guides management and agents through a process
designed to uniquely evaluate each subject and identify the ideal
consequences to deliver to impede and deter further illegal activity.
The CDS uses a combination of criminal and administrative
consequences developed by the Border Patrol, and implemented with the
assistance of ICE, targeting specific classifications of offenders,
effectively breaking the smuggling cycle along the border of the United
States. This allows the U.S. Border Patrol to match the individual and
the consequence in the most effective and efficient way.
overview of repatriation and criminal prosecution consequences
Standard criminal prosecutions are the traditional means for
imposing consequences on aliens who have committed criminal acts.
Aliens entering the United States without being lawfully admitted are
subject to prosecution for illegal entry. If an alien has been
previously ordered removed, they are amenable to a felony charge of
reentry after removal. Criminal prosecutions are essential to border
security operations; however the volume of border-related illegal
activity restricts the percentage of criminal cases that the Border
Patrol is able to process within the criminal justice system. Due to
limitations imposed by the labor, detention costs, and the expense of
criminal prosecutions and administrative proceedings, repatriation is
often the preferred consequence.
The following initiatives represent examples of the Consequence
Delivery System that aids the overarching effort to improve the safety
and security of the border:
Operation Against Smugglers Initiative on Safety and
Security (OASISS) is a bilateral, criminal prosecution
agreement between the United States and Mexico. Since 2005,
this program allows for Mexican citizens found smuggling aliens
in the United States to be prosecuted by the government of
Mexico.
Streamline is a criminal prosecutions program targeting
individuals who illegally enter the United States through
defined geographic locations. Consequences are imposed through
consistent application of criminal sanctions to reduce illicit
cross-border activity. Streamline is a multi-agency effort that
relies heavily upon the collaborative efforts of CBP, the U.S.
Magistrate, the Federal Judiciary, the U.S. Attorney's Office,
the U.S. Marshals Service, ICE, and the Executive Office of
Immigration Review.
Efficient Immigration Court Hearings: CBP is working with
EOIR to increase the efficiency of immigration court hearings
by placing aliens apprehended along the border in removal
proceedings in courts close to the border, eliminating the need
to acquire detention space to hold an alien while awaiting an
appearance before an Immigration Judge. The judge's Order of
Removal establishes that the subject cannot apply to legally
re-enter the United States for a period of 10 years. Subjects
re-arrested are amenable to be charged criminally with a
felony, Illegal Re-entry after Deportation.
Alien Transfer Exit Program (ATEP) repatriates aliens into
regions far from their entry location to disrupt future
coordination with smugglers after their arrest and removal.
ATEP is designed to disrupt the smuggling cycle that often
reunites removed aliens with their hired smugglers to attempt
another illegal entry.
Mexican Interior Repatriation Program (MIRP) is a joint CBP
and ICE effort. The program removes Mexican nationals to the
interior of Mexico on a voluntary basis, away from high-risk
areas of the Sonora Desert, where temperatures spike and
exposure-related deaths peak during summer months. The
objective of the program is to save lives and disrupt the human
smuggling cycle. At-risk aliens are identified for
participation by factors that include age, physical condition,
and travel status.
Expedited removal proceedings are initiated against aliens
who are present without admission and encountered by an
immigration officer within 100 air miles of the U.S. border,
and not physically present in the United States for the 14-day
period immediately before their arrest. Aliens processed for
expedited removal procedures are not detained pending a hearing
before an immigration judge, but are immediately processed for
a formal administrative removal order. If an alien
expeditiously removed returns illegally, he may be considered
for criminal prosecution (Illegal Re-entry after Removal).
Reinstatement of Removal provides the ability to reinstate a
previously executed removal order with respect to aliens who
illegally reenter the United States. If an alien is found to
have reentered the United States after removal, the prior order
of removal is reinstated from its original date and is not
subject to review. In most cases, it is not necessary to detain
aliens processed for reinstatement pending a hearing before an
immigration judge. Reinstatement does not preclude criminal
prosecution in accordance with local procedures and guidelines.
Much like expedited removal, reinstatement of a final order is
an efficient means for immigration officers to remove aliens
who fit within this category from the United States without
referral to an immigration judge.
Voluntary Return is used at the discretion of Border Patrol
agents and their supervisors to allow an alien to depart
voluntarily from the United States in lieu of being subject to
removal proceedings. Eligible aliens may prefer to seek
voluntary return rather than undergo formal removal
proceedings. Voluntary return reduces processing time for
agency personnel, while at the same time allowing the alien to
avoid the potential penalties attached to formal removal
proceedings.
Warrant of Arrest/Notice to Appear is used when Border
Patrol agents make an arrest and the alien is to be detained in
DHS custody pending a hearing before an immigration judge.
Generally speaking, whenever an alien is detained for formal
immigration proceedings, the commitment of labor, and resources
involved in the removal process are significantly higher.
We know from experience that targeted enforcement works. Collective
understanding of where the greatest risks lie along our borders is
critical to our flexibility in addressing these risks. As CBP applies
targeted enforcement to areas of evolving threat, mobile response
capability is critical to timely and effective resolution. This mobile
response capability must actively engage all CBP components and our
partners in order to ensure proper synchronization and effectiveness.
impact of immigration enforcement efforts
Over the past 2 years, the administration has established clear
priorities that govern how DHS uses its immigration enforcement
resources. These priorities focus resources on enhancing border
security and identifying and removing criminal aliens, those who pose a
threat to public safety and National security, individuals recently
apprehended at the border while illegal entering, repeat immigration
law violators, and other individuals prioritized for removal. While
additional work remains, DHS has made tremendous progress in its effort
to focus resources on these enforcement priorities.
In light of law enforcement priorities and limited resources, ICE
has implemented policies that call for the utilization of prosecutorial
discretion, when appropriate, in order to enhance the allocation of
resources devoted to the removal of priority aliens. As a result of
these policies, ICE has been able to increase its support of Border
Patrol operations along the Southwest Border. The detention beds and
immigration agents that are provided by ICE ERO enhance Border Patrol's
ability to apply consequences through the CDS which have the greatest
deterrent effect on individuals apprehended at the border after
illegally crossing. ICE's focus on I-9 audits has eliminated many of
the jobs that served as magnets, drawing people to illicitly cross the
border. Equally important is the deterrent effect provided by ICE's
prioritization of recent border entrants, criminal offenders, and
repeat immigration law violators.
The strategic reallocation of resources to the Southwest Border and
prioritization of recent border entrants, convicted criminals, and
repeat immigration law violators has helped CBP continue to drive down
illicit cross border traffic. There is no doubt that the historic
results achieved by the Border Patrol along the Southwest Border are
due, in part, to the assistance of ICE and the establishment of these
policies.
conclusion
Chairwoman Miller, Ranking Member Cuellar, and distinguished
Members of the committee, thank you for this opportunity to testify
about the work of U.S. Customs and Border Protection, and our efforts
in securing our borders.
I look forward to answering your questions at this time.
Mrs. Miller. Thank you very much, Chief.
Mr. Kibble.
STATEMENT OF KUMAR C. KIBBLE, DEPUTY DIRECTOR, IMMIGRATION AND
CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY
Mr. Kibble. Good morning, Chairman Miller, Ranking Member
Cuellar, and distinguished Members of the subcommittee. On
behalf of Secretary Napolitano and Director Morton, thank you
for the opportunity to address you today regarding ICE's
mission to promote homeland security and public safety through
the criminal and civil enforcement of Federal laws governing
border control, customs, trade, and immigration.
The men and women of ICE do this every day by carrying out
ICE's role in protecting the borders through smart and
effective immigration enforcement; securing and managing our
borders against illicit trade, travel, and finance; and
preventing terrorism and enhancing National security. In the
last 2.5 years we have made unprecedented strides across our
agency, and as a result, we have made communities across
America, and Americans around the world, safer and more secure.
There has been much discussion in recent months about the
administration's approach to immigration enforcement. The
administration's policies have been alternatively described as
either an unprecedented effort to deport record numbers of
individuals arbitrarily, or as an administrative amnesty that
ignores the Government's responsibility to enforce immigration
laws. Both characterizations are inaccurate.
Over the past few years, ICE has worked to develop guidance
to help focus immigration enforcement efforts on our highest
priorities: Promoting public safety, border security, and the
integrity of the immigration system. This approach has yielded
impressive results.
In fiscal year 2010, ICE removed a record 195,772 criminal
aliens, more than any other year in history, and 81,000 more
criminal removals than in fiscal year 2008. Nearly 50 percent
of the aliens we removed in fiscal year 2010 have been
convicted of crimes.
This trend has continued. We will again have removed a
record number of criminal aliens from the country in this most
recent fiscal year, 2011.
This prioritized approach will also continue to enhance
ICE's historic partnership with Customs and Border Protection.
This partnership includes the dedication of ICE resources to
the apprehension and detention of recent border-crossers.
The record-setting results achieved along the Southwest
Border are attributable, in part, to this unprecedented
partnership. Notably, this process will allow DHS to free up
additional resources that can be shifted to the Southwest
Border to aid and, again, promote border security.
As I have stated, the administration has established the
identification and removal of public safety and National
security threats as a top priority. To aid in this effort, we
have expanded the use of Secure Communities, which identifies
individuals arrested and booked into jail for a violation of a
State or local criminal offense, convicted criminals, gang
members, and other enforcement priorities in our jails and
prisons.
Since its inception in 2008, more than 97,600 aliens
convicted of crimes, including more than 35,500 convicted of
aggravated felony offenses, were removed from the United States
after identification through Secure Communities. These removes
significantly contributed to a 71 percent increase in the
overall percentage of convicted criminals removed by ICE.
In March 2009 the administration launched the Southwest
Border Initiative, to bring unprecedented focus and intensity
to the Southwest Border security. In support of this
initiative, ICE has targeted considerable resources at the
Southwest Border to investigating transnational crime stemming
from and resulting in the interdiction of contraband, such as
firearms, ammunition, bulk cash currency, stolen vehicles,
human smuggling, and the detection of tunnels and other border
crime at and between ports of entry along the Southwest Border.
Since 2006, DHS has leveraged the Border Enforcement
Security Taskforce, or BEST, model, which combines Federal,
State, Tribal, local, and foreign law enforcement and
intelligence resources to synchronize efforts to combat
emerging and existing threats. Thus far, in fiscal year 2011,
ICE-led BESTs have made almost 1,600 criminal arrests, seized
over 200,000 pounds of narcotics, and more than $11 million in
U.S. currency and monetary instruments. Some 733 defendants
have been convicted thus far in this most recent fiscal year.
Enforcing our immigration priorities and obligations is
neither simple nor easy, and we are committed to getting it
right. We all agree that we need fair, consistent, and
enforceable immigration laws that encourage the free flow of
commerce while respecting both security and the rights of
individuals.
While we are committed to being smart and tough with our
enforcement, it remains the administration's position that
Congress needs to take up immigration reform. We look forward
to working with Congress to this end.
Thank you, again, for the opportunity to appear before you
today. I am proud of the work our ICE teams do each and every
day to help strengthen and secure our homeland, and we are
engaging in record-breaking immigration enforcement strategies.
I appreciate your interest in this issue and your continued
support of ICE, and I will be pleased to answer any questions
you may have.
[The statement of Mr. Kibble follows:]
Prepared Statement of Kumar C. Kibble
October 4, 2011
introduction
Chairman Miller, Ranking Member Cuellar, and distinguished Members
of the subcommittee: On behalf of Secretary Napolitano and Director
Morton, thank you for the opportunity to address you today regarding
U.S. Immigration and Customs Enforcement (ICE). As the investigative
arm of the Department of Homeland Security (DHS), ICE's primary mission
is to promote homeland security and public safety through the criminal
and civil enforcement of Federal laws governing border control,
customs, trade, and immigration. The men and women of ICE do this every
day by carrying out ICE's role in: (1) Protecting the borders through
smart and effective immigration enforcement; (2) securing and managing
our borders against illicit trade, travel, and finance; and (3)
preventing terrorism and enhancing National security.
We are effectively managing our resources by carrying out our
responsibilities in a smart, fair, and efficient manner. In the last
2\1/2\ years, we have made unprecedented strides across our agency, and
as a result, we have made communities across America, and Americans
around the world, safer and more secure. I welcome this opportunity
today to share with you our successes and our opportunities as we move
into a new year.
Protecting the Borders Through Smart and Effective Immigration
Enforcement
There has been much discussion in recent months about the
administration's approach to immigration enforcement. The
administration's policies have been alternatively described as either
an unprecedented effort to deport record numbers of individuals
arbitrarily, or as an administrative amnesty that ignores the
Government's responsibility to the enforce immigration laws. Both
characterizations are inaccurate. The administration's policy guidance
governing immigration enforcement makes this clear, as does its
enforcement record. ICE has worked to develop guidance to help focus
ICE's enforcement efforts on our highest priorities, including: Aliens
who pose dangers to National security or risks to public safety; recent
illegal entrants; repeat violators of immigration law; and aliens who
are fugitives from justice or otherwise obstruct immigration controls.
This approach has yielded results. DHS has produced record
immigration enforcement. In fiscal year 2010, ICE removed a record
195,772 criminal aliens, more than any other year in history, and
81,000 more criminal removals than in fiscal year 2008. Nearly 50
percent of the aliens we removed in fiscal year 2010 had been convicted
of criminal offenses. Removing these individuals helps to promote
public safety in communities across the country. We expect that this
trend will continue, and that this fiscal year, we will again remove a
record number of criminal aliens from the country.
Of those we removed in 2010 who lacked criminal convictions, more
than two-thirds were either recent border entrants or repeat
immigration law violators. As such, and unlike ever before, an
overwhelming majority of the aliens removed fell into one of ICE's
enforcement priorities. In fact, the number of individuals removed who
could not definitively be placed into at least one of the priority
categories--for example, those who were not immigration fugitives,
repeat immigration law violators, or removed at the border--dropped
from more than 19 percent in 2008 to less than 10 percent in 2010. We
expect to see similar results in fiscal year 2011 as well.
Prosecutorial Discretion
DHS must ensure that our immigration enforcement resources are
focused on the removal of those who constitute our highest priorities,
specifically individuals who pose threats to public safety such as
criminal aliens and National security threats, as well as repeat
immigration law violators, recent border entrants, and fugitives from
justice or those who otherwise obstruct immigration controls. There are
a significant number of cases currently pending before U.S. Department
of Justice (DOJ) immigration courts, many of these will take years to
resolve. Tens of thousands more are pending review in Federal courts.
Each of these cases costs taxpayers thousands of dollars, and those
involving low-priority individuals divert resources and attention from
high-priority cases. Due to the fiscal limitations, the expenditure of
significant resources on cases that fall outside of DHS enforcement
priorities hinders our public safety mission by consuming litigation
resources and diverting resources away from higher-priority
individuals.
Prosecutorial discretion has always been exercised in order to
prioritize the use of immigration enforcement resources. The
Immigration and Naturalization Service under the Department of Justice
and later ICE under DHS has used discretion on a case-by-case basis
where we feel it has been appropriate and responsible to do so, and
where it enhances our ability to meet our priorities. In keeping with
this practice, DHS and DOJ have recently established an interagency
working group to implement existing guidance regarding the appropriate
use of prosecutorial discretion in a manner consistent with our
enforcement priorities.
This interagency working group will work to determine that
immigration judges, the Board of Immigration Appeals, and the Federal
courts are focused on adjudicating high-priority cases more swiftly by
relieving pressure on the judicial system by identifying very low-
priority cases and on a case-by-case basis, setting those cases aside.
This will allow for additional DHS resources to be focused on the
identification and removal of those individuals who pose the greatest
threats. In part, this process will accelerate the removal of high-
priority aliens from the country. At no point will any individuals be
granted any form of ``amnesty.'' There will be no reduction in the
overall levels of enforcement and removals--only a more effective way
of marshaling our resources towards our highest-priority cases and
thus, increasing the number of criminal aliens and repeat immigration
violators removed from the country.
Likewise, it will enhance ICE's historic partnership with U.S.
Customs and Border Protection (CBP). Over the past few years, ICE has
worked closely with CBP to increase efforts to prevent illicit trade
and travel across our borders. This partnership includes the dedication
of ICE officers, agents, and detention facilities to the apprehension
and detention of recent border-crossers. The record-setting results
achieved along the Southwest Border are attributable, in part, to this
unprecedented partnership. Notably, this process will allow DHS to free
up additional resources that will be dedicated to the Southwest Border.
Secure Communities
As I have stated, the administration has established the
identification and removal of public safety and National security
threats as a top priority. To aid in this effort, we have expanded the
use of the Secure Communities program, which identifies individuals
arrested and booked into jail for a violation of a State or local
criminal offense, convicted criminals, gang members, and other
enforcement priorities in our jails and prisons.
ICE has acknowledged that it faced challenges in rolling out the
Secure Communities program initially, including in explaining how the
program works and which entities are required to participate.
Nevertheless, Secure Communities has proven to be one of our best tools
to help focus our immigration enforcement resources on our highest
enforcement priorities, including convicted criminals and egregious
immigration law violators, and ICE remains fully committed to the
program.
Since its inception on October 27, 2008, through September 18,
2011, more than 97,600 aliens convicted of crimes, including more than
35,500 convicted of aggravated felony offenses were removed from the
United States after identification through Secure Communities. These
removals significantly contributed to a 71 percent increase in the
overall percentage of convicted criminals removed by ICE, with 81,000
more criminal alien removals in fiscal year 2010 than in fiscal year
2008. As a result of the increased focus on criminals, removals of non-
criminals fell by 23 percent during the same time period. In addition,
over 25,000 aliens who were previously removed and reentered or who
failed to leave the United States following the issuance of a final
order of removal, deportation or exclusion, who are also DHS
enforcement priorities, were removed through Secure Communities over
the past 2 years.
Earlier this year, as part of the administration's continued
commitment to smart, effective immigration enforcement, ICE announced
key improvements to the Secure Communities program. They included:
Establishing a task force, comprised of law enforcement,
State and local government officials, prosecutors, and
immigration advocates, as part of the Homeland Security
Advisory Council to develop recommendations on how to improve
Secure Communities so that it can better focus on identifying
and removing individuals who pose true public safety threats.
ICE is currently reviewing recommendations submitted by the
Task Force;
Developing a new policy to protect victims of and witnesses
to crimes, to ensure that the crimes continue to be reported
and prosecuted;
Revising the detainer form that ICE sends to local
jurisdictions to emphasize long-standing guidance that State
and local entities are not to detain an individual for more
than 48 hours pursuant to the detainer;
Working with the DHS Office for Civil Rights and Civil
Liberties (CRCL) on regular and in-depth statistical monitoring
of the program;
Creating a series of training sessions in collaboration with
CRCL designed primarily for use by front-line State and local
law enforcement agency personnel to address civil rights and
civil liberties issues that may be relevant when Secure
Communities is activated for a jurisdiction; and
Agreeing to a protocol for CRCL to take the lead in
investigating complaints of alleged civil rights violations for
jurisdictions where Secure Communities is activated.
We are confident these changes will aid in our continued efforts to
strengthen and improve Secure Communities. We will continue to expand
Secure Communities to additional jurisdictions, and we look forward to
Nation-wide deployment by the end of 2013. We will also continue to
examine the program's effectiveness and invest in additional training
and education efforts.
Worksite Enforcement
As part of its immigration enforcement efforts, ICE has been
pursuing a comprehensive worksite enforcement strategy to deter
unlawful employment and drive a culture of compliance with the Nation's
immigration-related employment laws. The administration is focused on
conducting criminal investigations and prosecuting employers who
exploit or abuse their employees and those who have a history of
knowingly and repeatedly employing an illegal workforce.
Our strategy has been designed to: (1) Penalize employers who hire
illegal workers; (2) deter employers who are tempted to hire illegal
workers; and (3) encourage all employers to take advantage of easy to
use and well-crafted compliance tools.
The success of our approach is evident in the statistics. As of
September 17, 2011, ICE has initiated 3,015 investigations, which is
154 percent more than in all of fiscal year 2008. In fiscal year 2010,
ICE arrested 196 employers for criminal worksite-related immigration
violations, surpassing the previous high of 135 arrests in fiscal year
2008. So far in fiscal year 2011, ICE has also issued a record 2,393
notices of inspection, a more than a 375 percent increase from the
number issued in all of fiscal year 2008. This year, ICE has issued 331
final orders totaling $9 million in fines levied on employers compared
to 18 final orders issued totaling $675,000 in fiscal year 2008. In
addition, fiscal year 2010 worksite investigations resulted in a record
$36.6 million in judicial fines, forfeitures, and restitutions.
Enforcing our immigration priorities and obligations is neither
simple nor easy, and we are committed to getting it right. We all agree
that we need fair, consistent, and enforceable immigration laws that
encourage the free flow of commerce while respecting both security and
the rights of individuals. We are committed to making changes within
the immigration system that make sense and are achievable. While we are
committed to being smart and tough with our enforcement, it remains the
administration's position that Congress needs to take up immigration
reform. We look forward to working with Congress to this end.
Securing and Managing our Borders Against Illicit Trade, Travel, and
Finance
Southwest Border Initiative
In March 2009, the administration launched the Southwest Border
Initiative to bring unprecedented focus and intensity to Southwest
Border security, coupled with a reinvigorated, smart, and effective
approach to enforcing immigration laws in the interior of our country.
In support of this initiative, ICE has targeted considerable resources
at the Southwest Border to address the activities associated with
transnational criminal organizations, including the interdiction of
contraband such as firearms, ammunition, bulk cash currency, stolen
vehicles, human smuggling, and the detection of tunnels and other
border crime at and between ports of entry along the Southwest Border.
Under this initiative, ICE has doubled the personnel assigned to Border
Enforcement Security Task Forces (BESTs); increased the number of
intelligence analysts along the Southwest Border focused on cartel
violence; and quintupled deployments of Border Liaison Officers to work
with their Mexican counterparts. At the end of the third quarter of
fiscal year 2011, ICE deployed special agents to high-risk locations,
including Tijuana and Monterey, Mexico. ICE so far this year has
initiated 9,748 investigations along the Southwest Border, and is on
pace to surpass fiscal year 2010 totals.
Additionally, with the aid of $80 million provided in the 2010
Southwest Border supplemental appropriations, ICE has deployed 241
special agents, investigative support personnel, and intelligence
analysts to the border. Indeed, ICE now has one-quarter of all its
special agents assigned to the Southwest Border, more agents and
officers along the border than ever before.
Border Enforcement and Security Task Forces (BESTs)
In fiscal year 2011, ICE also continued to bolster border security
through the efforts of its BESTs, which bring together Federal, State,
local, territorial, Tribal, and foreign law enforcement. Thus far in
fiscal year 2011, ICE-led BESTs have made 1,565 criminal arrests, 814
administrative arrests, and obtained 757 indictments; seized 200,278
pounds of illegal drugs and $11.4 million in U.S. currency and monetary
instruments. Some 733 defendants have been convicted thus far in fiscal
year 2011.
Illicit Finance Investigations
One of the most effective methods for dismantling transnational
criminal organizations is to attack the criminal proceeds that fund
their operations. In coordination with public and private partners, ICE
works to seize illicit proceeds derived from and used for criminal
activities, and to shut down the mechanisms used to retain and transfer
these funds by countering bulk cash smuggling within the U.S.
financial, trade, and transportation sectors targeted by criminal
networks.
ICE's bulk cash smuggling investigations are coordinated through
the ICE-led Bulk Cash Smuggling Center, from which we provide real-time
operational and tactical support to Federal, State, and local officers
involved in bulk cash smuggling seizures. In 2010, ICE, in partnership
with the Drug Enforcement Administration, utilized the El Paso
Intelligence Center (EPIC) to tackle bulk cash smuggling. This
partnership ensures improved collaboration across the Federal
Government for bulk cash smuggling investigations 24 hours a day, 7
days a week.
International Partners and Cooperation
ICE works closely with our international partners to disrupt and
dismantle transnational criminal organizations. As part of these
efforts, ICE currently maintains nine vetted units world-wide. These
units are composed of highly-trained host country counterparts that
have the authority to investigate and enforce violations of law in
their respective country. Because ICE officials working overseas do not
possess law enforcement or investigative authority in host countries,
the use of vetted units enables ICE to dismantle, disrupt, and
prosecute transnational criminal organizations while respecting the
sovereignty of the host country.
In fiscal year 2010, Transnational Criminal Investigative Units
(TCIUs) in Mexico, Colombia, and Ecuador played a central role in
Operation Pacific Rim--an ICE-led investigation that dismantled one of
the most powerful and sophisticated bulk cash and drug smuggling drug
trafficking organizations in the world. As a result of international
cooperation, this operation resulted in ten guilty pleas, 21
indictments, and 22 arrests along with seizures totaling over $174
million in currency, 3.8 tons of cocaine, $37 million in criminal
forfeitures, and $179 million in property. During 2011, two more TCIUs
became operational and ICE plans to expand additional TCIUs in fiscal
year 2012.
Preventing Terrorism and Enhancing National Security
As the largest investigative arm of DHS, ICE enhances National and
border security by interrupting the illicit flow of money, merchandise,
and contraband that supports terrorist and criminal organizations. As
of the end of the third quarter of fiscal year 2011, ICE has seized
$363 million in currency, 1.4 million pounds of narcotics and other
dangerous drugs, and $272 million worth of contraband and other illegal
merchandise. In addition, ICE agents and officers responded to 1.1
million inquiries and calls for assistance from other Federal, State,
and local law enforcement agencies through ICE's Law Enforcement
Support Center (LESC).
ICE leads efforts in National security investigations through
interconnected programs that prevent criminals and terrorists from
using our Nation's immigration system to gain entry to the United
States. This includes: Investigating terrorist organizations and their
actors; preventing criminal and terrorists from obtaining U.S. visas
overseas; preventing criminal and terrorist organizations from
acquiring and trafficking weapons and sensitive technology; and
identifying and removing war criminals and human rights abusers from
the United States, while protecting children from exploitation.
Joint Terrorism Task Force (JTTF)
The FBI-led JTTFs are a part of a joint counterterrorism
partnership between U.S. law enforcement agencies. Since 2007, ICE
agents assigned to JTTFs have initiated 5,564 cases, resulting in
approximately 1,119 criminal arrests and 2,010 administrative arrests.
In fiscal year 2011, ICE special agents in Louisville, Kentucky,
assisted in a JTTF investigation which ultimately led to the arrest of
Waad Ramadan Alwan and Mohanad Shareef Hammadi. Both of these Iraqi
refugees were indicted on Federal terrorism charges, as well as the
murder of a U.S. person engaged in official duties. They both had
allegedly conspired to have money and weapons shipped to Iraq to
support the activities of al-Qaeda. In fiscal year 2012, ICE will
continue to collaborate with our law enforcement colleagues through the
FBI-led JTTFs.
Visa Security Program
The Visa Security Program (VSP) deploys ICE special agents to
diplomatic posts world-wide to conduct visa security activities and
identify potential terrorists or criminal threats before they reach the
United States. By working closely with the Department of State, this
program enhances National security by providing an additional level of
review of persons of special interest before they enter the United
States. ICE conducts visa security operations at 19 high-risk visa
adjudication posts in 15 countries.
Counter-proliferation Investigations
ICE leads the U.S. Government's efforts to prevent foreign
adversaries from illegally obtaining U.S. military products and
sensitive technology, including weapons of mass destruction and their
components. In fiscal year 2011, ICE initiated 1,780 new investigations
into illicit procurement activities, made 583 criminal arrests,
obtained 419 indictments, achieved 262 convictions, and made 2,332
seizures valued at $18.9 million.
In 2010, ICE, in coordination with the World Customs Organization
(WCO), launched ``Project Global Shield,'' an unprecedented
multilateral law enforcement effort aimed at combating the illicit
cross-border diversion and trafficking of precursor chemicals used by
terrorist and other criminal organizations to manufacture improvised
explosive devices by monitoring their cross-border movements. On March
22, 2011, Global Shield was endorsed by the WCO Enforcement Committee
and converted from a pilot project to a permanent program. It currently
has 83 participating countries and has led to 19 arrests, 24 seizures,
and chemical seizures totaling over 33 metric tons.
Human Trafficking and Human Smuggling Investigations
ICE works with our interagency and international partners to extend
our borders and disrupt and dismantle international human smuggling and
trafficking networks and organizations along their entire routes. ICE
holds the directorship of the Human Smuggling and Trafficking Center
(HSTC), an interagency information and intelligence fusion center and
clearinghouse. The HSTC was established to facilitate the broad
dissemination of anti-smuggling and trafficking information and help
coordinate the U.S. Government's efforts against human smuggling, human
trafficking, and criminal facilitation of terrorist mobility.
In 2010, ICE's Office of Intelligence established its Human
Trafficking Unit to develop intelligence and identify potential human
trafficking investigative targets. In the coming fiscal year, ICE plans
to expand coordination with the Departments of Justice and Labor to
initiate additional investigations of human trafficking violations.
Sadly, a significant number of human trafficking victims are
children. ICE takes these cases very seriously. ICE's ``Operation
Predator'' targets and investigates human smugglers and traffickers of
minors, as well as child pornographers, child sex tourists and
facilitators, criminal aliens convicted of offenses against minors, and
those deported for child exploitation offenses who have returned
illegally. Since its launch in 2003, Operation Predator has resulted in
the arrest of over 13,594 sexual predators, of which 10,975 were non-
citizens.
In fiscal year 2012, ICE will expand operations of our Child
Exploitation Section by establishing the Child Exploitation Center and
deploying Child Sex Tourism Traveler Jump Teams to conduct
investigations of U.S. citizens traveling in foreign counties for the
purpose of exploiting minors. ICE will also continue working to end
human trafficking and smuggling alongside the Department's ``Blue
Campaign''--a DHS initiative to combat human trafficking through
enhanced public awareness, victim assistance programs, and law
enforcement training and initiatives.
conclusion
Thank you so much for the opportunity to share with you the good
work of Immigration and Customs Enforcement. I'm proud of the work our
ICE teams do each and every day all around the world to help strengthen
and secure our homeland; we're engaging in record-breaking immigration
enforcement strategies, and I am confident we will continue to do so.
ICE's broad authority to enforce the Nation's trade, travel, finance,
and immigration laws has made American communities safer. On behalf of
the men and women of ICE, I thank you again for the opportunity to
testify on these efforts. I would now welcome any questions you may
have.
Mrs. Miller. Thank you very much, Mr. Kibble.
The Chairwoman now recognizes Dr. Wasem, and we appreciate
your attendance here today, Doctor.
STATEMENT OF RUTH ELLEN WASEM, PH.D., SPECIALIST IN IMMIGRATION
POLICY, CONGRESSIONAL RESEARCH SERVICE
Ms. Wasem. Chairwoman Miller, Ranking Member Thompson and
Ranking Member Cuellar, and Members of the committee, I am
honored to be testifying before you today on behalf of the
Congressional Research Service. This morning I will summarize
my written testimony, which I would like to submit for the
record, with three themes: The features of U.S. immigration law
that are especially pertain today's hearing, the factors that
drive unauthorized migration, and the relevance of the recent
Department of Homeland Security memorandum upon prosecutorial
discretion.
U.S. immigration law specifies a complex set of numerical
limits and preference categories that reflect the principles of
family reunification, workers with needed skills, protection of
refugees, and diversity of origin. The law also provides for
temporary admission of foreign nationals, such as tourists,
students, and workers. In addition to the provisions in the law
over who and how many may be admitted, the law establishes a
system of immigration authorities, tools, and procedures to
control unauthorized migration and to enforce the law against
those who violate it.
Immigration law further targets special categories of
foreign nationals for exclusion and removal. Among these
targeted categories are criminal aliens and those who pose
National security risks.
The 1986 Immigration Reform and Control Act was the last
major law that allowed unauthorized aliens living in the United
States to legalize their status. As you can see from Figure 1,
the estimated number of unauthorized resident aliens has
steadily increased since then, peaking in 2007.
The research points to various factors that have
contributed to the increase in unauthorized resident aliens
over the past 2 decades as well as the recent leveling off in
these trends. Unauthorized migration is generally attributed to
the push-pull of job opportunities in the United States in
contrast to the lack of opportunities in sending countries.
Accordingly, the recession that began in December 2007 may have
curbed unauthorized migration, particularly because the sectors
that traditionally rely on unauthorized aliens--construction,
services, and hospitality--have been especially hard hit.
The number of aliens apprehended in the United States
offers another perspective on the dynamics of unauthorized
migration. Figure 2 compares apprehension data with the number
of Border Patrol agents and the unemployment rate.
While it appears that apprehensions are correlated with the
number of agents and with unemployment levels over the past
decade, the empirical evidence to support a causal link with
either labor market demands or border enforcement has not been
demonstrated. Other contributing factors are in my written
testimony.
All unauthorized aliens are potentially removable. Figure 3
shows that formal removals have grown from 30,000 in 1990 to
over 387,000 in 2010. Since its enactment in 1952, the
Immigration Nationality Act has given the attorney general, and
more recently, the Secretary of Homeland Security,
prosecutorial discretion in exercising the power to remove
foreign nationals.
As early as 1975, agencies have issued guidance on this
that have been driven by humanitarian concerns, resource
limitations, and enforcement priorities. The backdrop of these
memos provide historical context for the latest memorandum.
In the 2011 memorandum, the guidelines included National
security or risks to public safety, recent illegal immigrants,
and fugitives or other aliens who obstruct immigration
controls. The 2011 June memo, Director Morton details 18
specific factors to be considered in weighing prosecutorial
discretion.
Now, in addition to citing factors that might prioritize
the removal proceeding, he also lists factors that might halt a
removal proceeding. Some of these would include an alien has an
immediate relative in the U.S. military, the alien is a
caretaker of someone with physical or mental disabilities, or
the alien has strong ties to the community.
It is also useful to point out what the Morton memorandum
does not do. They do not give anyone legal immigration status.
They do not provide an employment authorization. They do not
prevent the reopening of a removal case at a later date.
In closing, the relevance of the memorandum on
prosecutorial discretion may be viewed through the lens of a
changing environment. Despite the recent drop, the sheer size
in the unauthorized population has grown substantially in the
past 2 decades.
State and local governments are playing an increasing role
in enforcing immigration law. Congressionally-mandated programs
as well as technological advances have led to dramatic
improvements in the identification of removable aliens. These
dynamics serve to expand the pool of removable aliens at a time
when the financial resources of the Federal Government are
especially pressed.
This concludes my formal testimony, and I look forward to
your questions.
[The statement of Ms. Wasem follows:]
Prepared Statement of Ruth Ellen Wasem
October 4, 2011
Chairwoman Miller, Ranking Member Cuellar, and Members of the House
Homeland Security Subcommittee on Border and Maritime Security, I am
honored to be testifying before you today on behalf of the
Congressional Research Service. This morning I will discuss some of the
key features of U.S. immigration law that pertain to this hearing, the
factors that drive unauthorized migration to the United States, and the
relevance of the recent Department of Homeland Security (DHS) memoranda
on prosecutorial discretion.
Four major principles underlie U.S. immigration policy: The
reunification of families, the admission of immigrants with needed
skills, the protection of refugees, and the diversity of admissions by
country of origin. The Immigration and Nationality Act (INA) specifies
a complex set of numerical limits and preference categories that give
priorities for immigration reflecting these principles. Typically,
about 1 million new legal permanent residents are recorded each year.
The INA also provides for the admission of various categories of
foreign nationals, who are admitted for a temporary period of time and
a specific purpose. They include a wide range of categories, including
tourists, students, business people, and workers.\1\
---------------------------------------------------------------------------
\1\ Customs and Border Protection inspectors tallied 163 million
temporary admissions of foreign nationals to the United States during
2009. CRS Report RL31381, U.S. Immigration Policy on Temporary
Admissions, by Ruth Ellen Wasem.
---------------------------------------------------------------------------
In addition to the system of categories, priorities and numerical
limits that govern who and how many may be admitted, the INA
establishes a system of immigration authorities, tools, and procedures
to control unauthorized migration and to enforce the law against those
who violate the provisions governing legal entry. The law further
targets special categories of foreign nationals for exclusion and
removal from the United States. These categories include criminals
(e.g., aggravated felons, human traffickers, and alien smugglers) and
those that pose National security risks (e.g., terrorists, subversives,
and other threats to National security).\2\
---------------------------------------------------------------------------
\2\ These criteria include: Health-related grounds; criminal
history; security and terrorist concerns; public charge (e.g.,
indigence); illegal entrants; and aliens previously removed. INA
212(a). CRS Report RL32480, Immigration Consequences of Criminal
Activity, by Michael John Garcia; CRS Report R41104, Immigration Visa
Issuances and Grounds for Exclusion: Policy and Trends, by Ruth Ellen
Wasem.
---------------------------------------------------------------------------
The last major law that allowed unauthorized aliens living in the
United States to legalize their status was the Immigration Reform and
Control Act (IRCA) of 1986 (Pub. L. 99-603). Figure 1 presents the
estimate of 3.2 million unauthorized resident aliens in 1986. As
expected after the passage of IRCA, the estimate for 1988 dropped to
1.9 million.\3\ The estimated unauthorized resident alien population
grew to 3.4 million in 1992 and to 5.0 million (subsequently revised to
5.8 million) in 1996.\4\ By the close of the decade, the estimated
number of unauthorized alien residents reached 8.5 million.\5\ The
estimated number of unauthorized resident aliens had risen to 9.3
million by 2002.\6\ During the first decade after IRCA, researchers
projected that the net growth in unauthorized aliens had averaged about
500,000 annually; analyses done during the early 2000s estimated the
average growth at 700,000 to 800,000 unauthorized alien residents
annually.\7\
---------------------------------------------------------------------------
\3\ Karen Woodrow and Jeffrey Passel, ``Post-IRCA Undocumented
Immigration to the United States: An Analysis Based on the June 1988
CPS,'' in Undocumented Migration to the United States, by Frank D.
Bean, Barry Edmonston, and Jeffrey Passel (RAND Corporation, 1990).
\4\ Annual Estimates of the Unauthorized Immigrant Population
Residing in the United States and Components of Change: 1987 to 1997,
by Robert Warren, Office of Policy and Planning, U.S. Immigration and
Naturalization Service, September 2000.
\5\ U.S. Congress, House Committee on the Judiciary, Subcommittee
on Immigration and Claims, Hearing on the U.S. Population and
Immigration, August 2, 2001.
\6\ The Urban Institute, Undocumented Immigrants: Facts and
Figures, by Jeffrey Passel, Randy Capps, and Michael Fix, January 12,
2004.
\7\ Jeffrey S. Passel and D'Vera Cohn, Trends in Unauthorized
Immigration: Undocumented Inflow Now Trails Legal Inflow, Pew Hispanic
Center, October 2, 2008.
The calculated number of unauthorized alien residents peaked in
2007, when there were estimated 12.4 million unauthorized alien
residents in the United States. The estimates made from both the
Current Population Survey (CPS) and the American Community Survey (ACS)
indicated that the number dropped in 2008 and in 2009 before leveling
off in 2010.\8\
---------------------------------------------------------------------------
\8\ Jeffrey S. Passel and D'Vera Cohn, Unauthorized Immigrant
Population: National and State Trends, 2010, Pew Hispanic Center,
February 1, 2011.
---------------------------------------------------------------------------
The research points to various factors that have contributed to the
increase in unauthorized resident aliens over the past two decades as
well as a leveling off of these trends. Historically, unauthorized
migration is generally attributed to the ``push-pull'' of prosperity-
fueled job opportunities in the United States in contrast to limited or
nonexistent job opportunities in the sending countries.\9\ Accordingly,
the economic recession that began in December 2007 may have curbed the
migration of unauthorized aliens, particularly because sectors that
traditionally rely on unauthorized aliens, such as construction,
services, and hospitality, have been especially hard-hit.
---------------------------------------------------------------------------
\9\ CRS Report RL32982, Immigration Issues in Trade Agreements, by
Ruth Ellen Wasem.
---------------------------------------------------------------------------
Some researchers maintain that lax enforcement of employer
sanctions for hiring unauthorized aliens facilitated the ``pull'' for
many years and that the ratcheting up of work site enforcement in 2007
and 2008, along with increased investments in border security, has
subsequently mitigated the flow.\10\ Trend data suggest a correlation,
but it remains difficult to demonstrate this element empirically,
especially because the increased worksite enforcement and removals were
coincident with the housing downturn and the onset of the economic
recession.\11\
---------------------------------------------------------------------------
\10\ CRS Report R40002, Immigration-Related Worksite Enforcement:
Performance Measures, by Andorra Bruno.
\11\ Steven Camarota and Karen Jensenius, A Shifting Tide: Recent
Trends in the Illegal Immigrant Population, Center for Immigration
Studies, July 2009.
---------------------------------------------------------------------------
Although most policy makers have assumed that tighter border
enforcement reduces unauthorized migration, some researchers have
observed that the strengthening of the immigration enforcement
provisions may have inadvertently increased the population of
unauthorized resident aliens. This interpretation, generally referred
to as a caging effect, argues that increased penalties for illegal
entry, coupled with increased resources for border enforcement
disrupted the historical pattern of a circulatory movement of migratory
workers along the Southern Border; this in turn raised the stakes in
crossing the border illegally and created an incentive for those who
succeed in entering the United States to stay.\12\
---------------------------------------------------------------------------
\12\ Wayne Cornelius, ``Death at the Border: Efficacy and
Unintended Consequences of U.S. Immigration Control Policy,''
Population and Development Review, vol. 27, no. 4 (December 2001);
Wayne Cornelius, ``Evaluating Recent U.S. Immigration Control Policy:
What Mexican Migrants Can Tell Us,'' in Crossing and Controlling
Borders: Immigration Policies and Their Impact on Migrants' Journeys,
ed. Mechthild Baumann, Astrid Lorenz, and Kerstin Rosenhow (Farmington,
MI: Budrich Unipress Ltd, 2011); Thomas J. Espenshade, ``Undocumented
Migration to the United States: Evidence from a Repeated Trials
Model,'' in Undocumented Migration to the United States, by Frank D.
Bean, Barry Edmonston, and Jeffrey Passel (RAND Corporation, 1990);
Douglas S. Massey, Jorge Durand, and Nolan J. Malone, Beyond Smoke and
Mirrors: Mexican Immigration in an Era of Economic Integration (Russell
Sage Foundation, 2002).
Data on the number of aliens apprehended entering the United States
offers another perspective on unauthorized migration. Figure 2 compares
apprehension data with the number of Border Patrol agents and with the
unemployment rate. While it appears that apprehensions are correlated
to the number of agents and unemployment levels over the past decade,
the empirical evidence to support a causal link with either labor
market demands or strengthened border enforcement policies has not been
demonstrated.\13\
---------------------------------------------------------------------------
\13\ For further discussion see: CRS Report R41237, People Crossing
Borders: An Analysis of U.S. Border Protection Policies, by Alison
Siskin.
---------------------------------------------------------------------------
Political instability or civil unrest at home is another element
that traditionally has led people to risk unauthorized migration.\14\
Asylum seekers who enter the United States illegally have always been
included in the estimates of the unauthorized alien population. Asylum
seekers have become a smaller share of the unauthorized alien
residents, however, and do not account the overall trends in the
unauthorized resident aliens in recent years.\15\
---------------------------------------------------------------------------
\14\ For a summary of this research, see Commission for the Study
of International Migration and Cooperative Economic Development,
Unauthorized Migration: An Economic Development Response, Appendix E,
July 1990.
\15\ Not all humanitarian migrants are eligible for asylum or
refugee status, and roughly 30% of all asylum cases in recent years
have been approved. The legal definition of asylum in the INA is
consistent with the refugee definition, which specifies that a refugee
is a person who is unwilling or unable to return to his country of
nationality or habitual residence because of a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. CRS Report R41753,
Asylum and ``Credible Fear'' Issues in U.S. Immigration Policy, by Ruth
Ellen Wasem.
---------------------------------------------------------------------------
The inadequacies in the current system of legal immigration is
sometimes cited as another factor contributing to the growth in
unauthorized alien residents.\16\ There are statutory ceilings that
limit the type and number of immigrant visas issued each year, which
create wait-times for visas to become available to legally come to the
United States.\17\ The Immigration Amendments of 1990 cut the number of
skilled and unskilled employment-based legal permanent residents from
27,000 to 10,000 annually, leading some to argue that the remainder of
this migrant flow shifted from legal to illegal pathways to work in the
United States. Family members sometimes risk staying in the United
States on an expired temporary visa or entering the United States
illegally to be with their family while they wait for the visas to
become available. It remains difficult, however, to correlate these
factors or to guarantee that increasing the levels of legal migration
would absorb the flow of unauthorized migrants.\18\ The recent increase
in the number of aliens formally removed from the United States
annually might also have had a chilling effect on foreign nationals
weighing the risk of illegal presence if they would ultimately be
eligible to immigrate.\19\
---------------------------------------------------------------------------
\16\ U.S. Congress, Senate Committee on the Judiciary, Subcommittee
on Immigration, Refugees and Border Security, Comprehensive Immigration
Reform in 2009, Can We Do It and How? 111th Cong., 1st sess., April 30,
2009.
\17\ CRS Report RL32235, U.S. Immigration Policy on Permanent
Admissions, by Ruth Ellen Wasem.
\18\ U.S. Congress, Senate Committee on the Judiciary, Subcommittee
on Immigration, Refugees and Border Security, Comprehensive Immigration
Reform in 2009, Can We Do It and How? 111th Cong., 1st sess., April 30,
2009.
\19\ Office of Immigration Statistics, Immigration Enforcement
Actions: 2010, Department of Homeland Security, June 2011, http://
www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-
2010.pdf.
Figure 3 shows that formal removals have grown from 30,039 in 1990
to 387,242 in 2010. Since 2001, formal removals have increased by over
100%. The trends for direct returns at the border and voluntary
departures (i.e., permitting aliens to leave the United States on their
own recognizance and at their own expense) within the interior in
Figure 3 resemble that of apprehensions over the same period as
depicted in Figure 2.
All unauthorized aliens (i.e., aliens who have entered without
permission or violated the terms of their visas) are potentially
removable. The INA specifies six broad classes of foreign nationals who
are removable, including persons who:
are inadmissible at time of entry or violate their
immigration status;\20\
---------------------------------------------------------------------------
\20\ All aliens must satisfy to DHS inspectors upon entry to the
United States that they are not ineligible for admission under the
grounds for inadmissibility specified in INA 212. These include
health-related grounds, criminal history, National security and
terrorist concerns, becoming a public charge, seeking to work without
proper labor certification, illegal entry and immigration law
violations, lack of proper documents, ineligibility for citizenship,
and aliens previously removed.
---------------------------------------------------------------------------
commit certain criminal offenses (e.g., crimes of moral
turpitude,\21\ aggravated felonies,\22\ alien smuggling);
---------------------------------------------------------------------------
\21\ Moral turpitude is not easily defined under immigration law.
Some argue that the flexibility in the term allows for changing social
norms.
\22\ The definition of aggravated felony (defined in INA
101(a)(43)) includes over 50 types of crimes. In addition, an alien
convicted of an aggravated felony is conclusively presumed to be
deportable (INA 238(c)). Misdemeanors at the State level may be
aggravated felonies under the INA.
---------------------------------------------------------------------------
fail to register (if required under law) or commit document
fraud;
are security risks (such as aliens who violate any law
relating to espionage, engage in criminal activity which
endangers public safety, partake in terrorist activities, or
assisted in Nazi persecution or genocide);
become a public charge within 5 years of entry;\23\ or
---------------------------------------------------------------------------
\23\ So few aliens have been deported under these grounds since
1980, that DHS does not report the number.
---------------------------------------------------------------------------
vote unlawfully.
Foreign nationals who are removed are subsequently subject to bars
to reenter the country.\24\
---------------------------------------------------------------------------
\24\ There is a 5-year bar to admissibility for aliens who have
been subjected to expedited removal or those ordered removed when
trying to enter the United States. There is a 10-year bar for admission
for those who were ordered deported. There is a 20-year bar for those
who have been previously removed, and those convicted of an aggravated
felony are permanently inadmissible. INA 212(a)(9)(A).
---------------------------------------------------------------------------
In removal proceedings an immigration judge from the Department of
Justice's Executive Office for Immigration Review determines whether a
foreign national is removable. The courts have ruled that removal
proceedings are civil not criminal proceedings.\25\ The proceeding
commences when the person is issued a notice to appear (NTA) which can
be issued by a variety of DHS personnel including Border Patrol
officers in Customs and Border Protection (CBP), asylum officers and
adjudicators in U.S. Citizenship and Immigration Services (USCIS), and
investigators and detention officers in Immigration and Customs
Enforcement (ICE).\26\
---------------------------------------------------------------------------
\25\ Charles Gordon, Stanley Mailman, Stephen Yale-Loehr,
Immigration Law and Procedure. Newark: LexisNexis, vol 6.
\26\ 8 C.F.R. 239.1(a).
---------------------------------------------------------------------------
In 1986, Congress made deporting aliens who had been convicted of
certain crimes an enforcement priority. IRCA required the Attorney
General ``In the case of an alien who is convicted of an offense which
makes the alien subject to deportation . . . [to] begin any deportation
proceeding as expeditiously as possible after the date of the
conviction.''\27\ Between 1988 and 1996, Congress enacted a series of
measures, including the Illegal Immigrant Reform and Immigrant
Responsibility Act of 1996 (Pub. L. 104-208), expanding the definition
of aggravated felons and created additional criminal grounds for
removal.\28\
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\27\ Pub. L. 99-603, 701.
\28\ Anti-Drug Abuse Act of 1988 (Pub. L. 100-690); Immigration Act
of 1990, Pub. L. 101-649 (1990); Immigration and Nationality Technical
Correction Act of 1994, Pub. L. 103-416 (1994); Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. 104-132 (1996); Illegal
Immigrant Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-
208, Div. C (1996).
TABLE 1.--REMOVALS OF CRIMINAL ALIENS AND NON-CRIMINAL ALIENS, 2001 TO
2010
------------------------------------------------------------------------
Percent
Fiscal Year Criminal Non-Criminal Criminal
------------------------------------------------------------------------
2001......................... 73,298 115,728 39
2002......................... 73,429 91,739 44
2003......................... 83,731 127,367 40
2004......................... 92,380 148,285 38
2005......................... 92,221 154,210 37
2006......................... 98,490 182,484 35
2007......................... 102,394 216,988 32
2008......................... 105,266 254,529 29
2009......................... 131,840 263,325 33
2010......................... 168,532 218,710 44
------------------------------------------------------------------------
Source: DHS Office of Immigration Statistics Yearbook, 2010, Table 38.
The number of criminal aliens who have been removed has risen
sharply in recent years. According to the DHS Office of Immigration
Statistics presented in Table 1, the number of criminal aliens removed
from the United States has gone from 73,298 in 2001 to 168,532 in 2010.
These numbers constitute a 138% increase in the removal of criminal
aliens over the past decade. Criminal aliens made up 44% of all
removals in 2010, the largest portion of removals since 2002.
Since its enactment in 1952, the Immigration and Nationality Act
has given the Attorney General and more recently the Secretary of
Homeland Security prosecutorial discretion to exercise the power to
remove foreign nationals. In 1959, a major textbook of immigration law
wrote, ``Congress traditionally has entrusted the enforcement of its
deportation policies to executive officers and this arrangement has
been approved by the courts.\29\ Generally, prosecutorial discretion is
the authority that an enforcement agency has in deciding whether to
enforce or not enforce the law against someone. In the immigration
context, prosecutorial discretion exists across a range of decisions
that include: Prioritizing certain types of investigations; deciding
whom to stop, question, and arrest; detaining an alien; issuing a
notice to appear (NTA); granting deferred action; agreeing to let the
alien depart voluntarily; and executing a removal order.
---------------------------------------------------------------------------
\29\ Charles Gordon and Harry N. Rosenfield, Immigration Law and
Procedure, Albany, New York: Banks and Company, 1959, p. 406.
---------------------------------------------------------------------------
As early as 1975, the former Immigration and Naturalization Service
(INS) issued guidance on a specific form of prosecutorial discretion
known as deferred action, which cited ``appealing humanitarian
factors.'' The INS Operating Instructions said that consideration
should be given to advanced or tender age, lengthy presence in the
United States, physical or mental conditions requiring care or
treatment in the United Sates, and the effect of deportation on the
family members in the United States. On the other hand, those INS
Operating Instructions made clear that criminal, immoral, or subversive
conduct or affiliations should also be weighed in denying deferred
action.\30\ It is especially important to note that not all
prosecutorial discretion decisions to halt removal proceedings result
in a grant of deferred action to the foreign national.
---------------------------------------------------------------------------
\30\ Shoba Sivaprasad Wadhia, ``The Role of Prosecutorial
Discretion in Immigration Law,'' Connecticut Public Interest Law
Journal, Spring 2010.
---------------------------------------------------------------------------
In an October 24, 2005 memorandum, then-ICE Principal Legal Advisor
William Howard cited several policy factors on needs to exercise
prosecutorial discretion. One factor focused on institutional changes,
as he wrote,
``Gone are the days when INS district counsels . . . could simply walk
down the hall to an INS district director, immigrant agent,
adjudicator, or Border Patrol officer to obtain the client's permission
to proceed . . . Now the NTA-issuing clients might be in different
agencies, in different buildings, and in different cities from our
own.''
Another issue Howard raised was resources, as he pointed out that
the Office of Principal Legal Advisor (OPLA ) was ``handling about
300,000 cases in the immigration courts, 42,000 appeals before the
Board of Immigration Appeals (BIA or Board) and 12,000 motions to re-
open each year.'' He further stated:
``Since 2001, Federal immigration court cases have tripled. That year
there were 5,435 Federal court cases. Four years later, in fiscal year
2004, that number had risen to 14,699 Federal court cases. Fiscal year
2005 Federal court immigration cases will approximate 15,000.''\31\
---------------------------------------------------------------------------
\31\ William J. Howard, Principal Legal Advisor, U.S. Immigration
and Customs Enforcement, Prosecutorial Discretion, memorandum to all
Office of the Principal Legal Advisor Chief Counsel, October 24, 2005.
Howard offered examples of the types of cases to consider for
prosecutorial discretion, such as someone who had a clearly approvable
petition to adjust to legal permanent resident status, someone who was
an immediate relative of military personnel, or someone for whom
sympathetic humanitarian circumstances ``cry for an exercise of
prosecutorial discretion.''\32\
---------------------------------------------------------------------------
\32\ William J. Howard, Principal Legal Advisor, U.S. Immigration
and Customs Enforcement, Prosecutorial Discretion, memorandum to all
Office of the Principal Legal Advisor Chief Counsel, October 24, 2005.
---------------------------------------------------------------------------
In November 2007, then-DHS Assistant Secretary Julie L. Myers
issued a memorandum in which she clarified that the replacement of the
``catch and release'' procedure with the ``catch and return'' policy
for apprehended aliens (i.e., a zero-tolerance policy for all aliens
apprehended at the border) did not ``diminish the responsibility of ICE
agents and officers to use discretion in identifying and responding to
meritorious health-related cases and caregiver issues.'' Myers
referenced and attached a November 7, 2000, memorandum entitled
``Exercising Prosecutorial Discretion,'' which was written by former
INS Commissioner Doris Meissner in 2000.
``Like all law enforcement agencies, the INS has finite resources, and
it is not possible to investigate and prosecute all immigration
violations. The INS historically has responded to this limitation by
setting priorities in order to achieve a variety of goals. These goals
include protecting public safety, promoting the integrity of the legal
immigration system, and deterring violations of the immigration law. It
is an appropriate exercise of prosecutorial discretion to give priority
to investigating, charging, and prosecuting those immigration
violations that will have the greatest impact on achieving these
goals.''
Meissner further stated that prosecutorial discretion should not
become ``an invitation to violate or ignore the law.'' She concluded by
citing the ``substantial Federal interest'' principle governing the
conduct of U.S. Attorneys when determining whether to pursue criminal
charges in a particular instance, and claimed that this principle was
pertinent to immigration removal decisions as well. According to the
memorandum, immigration enforcement officers ``must place particular
emphasis on the element of substantiality. How important is the Federal
interest in the case, as compared to other cases and priorities?''\33\
---------------------------------------------------------------------------
\33\ Doris Meissner, Commissioner of the Immigration and
Naturalization Service, Exercising Prosecutorial Discretion, memorandum
to regional directors, district directors, chief patrol agents, and the
regional and district counsels, November 7, 2000.
---------------------------------------------------------------------------
The backdrop of the Meissner, Howard, and Myers memoranda provide
historical context for the recent memoranda on prosecutorial discretion
written by ICE Director John Morton. In March 2011, Morton published
agency guidelines that define a three-tiered priority scheme that
applies to all ICE programs and enforcement activities related to civil
immigration enforcement.\34\ Under these guidelines, ICE's top three
civil immigration enforcement priorities are to: (1) Apprehend and
remove aliens who pose a danger to National security or a risk to
public safety, (2) apprehend and remove recent illegal entrants,\35\
and (3) apprehend aliens who are fugitives or otherwise obstruct
immigration controls.
---------------------------------------------------------------------------
\34\ ICE's mission includes the criminal and civil enforcement of
Federal laws governing border control, customs, trade, and immigration;
see ICE, ``ICE Overview: Mission,'' http://www.ice.gov/about/overview/.
Laws governing the detention and removal of unauthorized aliens
generally fall under ICE's civil enforcement authority, while laws
governing the prosecution of crimes, including immigration-related
crimes, fall under ICE's criminal enforcement authority. Also see
Hiroshi Motomura, ``The Discretion That Matters: Federal Immigration
Enforcement, State and Local Arrests, and the Civil-Criminal Line,''
UCLA Law Review, vol. 58, no. 6 (August 2011), pp. 1819-1858.
\35\ The memorandum does not define ``recent illegal entrants.''
DHS regulations permit immigration officers to summarily exclude an
alien present in the United States for less than 2 years unless the
alien expresses an intent to apply for asylum or has a fear of
persecution or torture; and DHS policy is to pursue expedited removal
proceedings against aliens who are determined to be inadmissible
because they lack proper documents, are present in the United States
without having been admitted or paroled following inspection by an
immigration officer at a designated port of entry, are encountered by
an immigration officer within 100 miles of the U.S. border, and have
not established to the satisfaction of an immigration officer that they
have been physically present in the United States for over 14 days.
---------------------------------------------------------------------------
In his June 17, 2011 memorandum, Morton spells out 18 factors that
are among those that should be considered in weighing prosecutorial
discretion. The factors included those that might halt removal
proceedings, such as whether the person's immediate relative was
serving in the military, whether the person was a caretaker of a person
with physical or mental disabilities, or whether the person had strong
ties to the community. The factors Morton listed also included those
that might prioritize a removal proceeding, such as whether the person
had a criminal history, whether the person poses a National security or
public safety risk, whether the person recently arrived in the United
States and how the person entered.
``This list is not exhaustive and no one factor is determinative. ICE
officers, agents and attorneys should always consider prosecutorial
discretion on a case-by-case basis. The decisions should be based on
the totality of the circumstances, with the goal of conforming to ICE's
enforcement priorities.''
The Morton memoranda would halt removal proceedings on those
foreign nationals that are not prioritized for removal.\36\
---------------------------------------------------------------------------
\36\ John Morton, Director of Immigration and Customs Enforcement,
Exercising Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency for Apprehension,
Detention, and Removal of Aliens, memorandum to field office directors,
special agents in charge, and chief counsels, June 17, 2011.
---------------------------------------------------------------------------
It is also useful to point out what the Morton memoranda do not do.
They do not:
give an unauthorized alien a legal immigration status;
entitle an alien to employment authorization;
alter the target on the number of aliens to be removed;
count as time toward cancellation of removal; or
prevent re-opening a removal case at later date.
It is possible that the guidance of the memoranda, along with the
procedures described in a subsequent letter Secretary Janet Napolitano
wrote August 18, 2011, might provide a system or structure that would
lead to greater consistency in the use of prosecutorial discretion. The
interagency working group that Secretary Napolitano is establishing
with the Department of Justice is charged with reviewing (on a case-by-
case basis) the files of persons currently in removal proceedings and
issuing guidance on the appropriate consideration necessary to meet the
enforcement priorities.\37\ The Task Force on Secure Communities
recently recommended that DHS ensure that its personnel exercise
prosecutorial discretion systematically.\38\ Whether this interagency
working group will provide such a structure to do so remains to be
seen.
---------------------------------------------------------------------------
\37\ The Honorable Secretary Janet Napolitano, letter to the
Honorable Senator Dick Durbin, August 18, 2011.
\38\ Homeland Security Advisory Council, Task Force on Secure
Communities Findings and Recommendations, September, 2011.
---------------------------------------------------------------------------
The relevance of these memoranda on prosecutorial discretion may be
viewed through the lens of a changing environment. The sheer size of
the unauthorized population has grown substantially, despite a recent
drop in both the unauthorized resident alien population and the
apprehensions of illegal aliens. State and local governments are
playing an increasing role in enforcing immigration law.\39\ As a
result of Congressionally-mandated programs as well as technological
advances, there have been dramatic improvements in the identification
of removable aliens. These dynamics serve to expand the pool of
removable aliens at a time when the financial resources of the Federal
Government are especially pressed.
---------------------------------------------------------------------------
\39\ CRS Report R41221, State Efforts to Deter Unauthorized Aliens:
Legal Analysis of Arizona's S.B. 1070, by Kate M. Manuel, Michael John
Garcia, and Larry M. Eig.
---------------------------------------------------------------------------
This concludes my formal testimony, and I look forward to your
questions.
Mrs. Miller. Thank you very much, Dr. Wasem.
I appreciate the testimony of all of our witnesses today,
and I know there has been some consternation about the title of
our hearing, and I would say this, as I have listened to all of
your testimony: I don't think anybody disagrees with the
concept, certainly, of removing criminal aliens from the United
States. We are all very, very much in support of that.
I think the problem that many of us have as we categorize
this as administrative amnesty is allowing all others who have
not actually committed a crime not to--I mean, any other crime
other than entering the country illegally, which is a crime,
obviously, that there would be no efforts, really, because of
resources, as I am understanding it, to deport them, or remove
them, or what have you.
I would just mention, first of all, in regards to the
dictionary's definition of amnesty, whether or not this is
amnesty when you have--if you are going to deport 400,000 and
leave the other whatever is left out of 11-12 million or more
illegals here, ``the act of any authority, such as government,
by which pardon is granted to a large group of individuals; the
excusing of an offense without enacting a penalty; a release
from the legal penalties of an offense.''
I believe that that is the definition of what the
administration is doing here in regards to administrative
amnesty, and there has been a huge outcry around the country,
of course, about the administration's policy in regards to
this.
I would also note, and I am sure we are going to get into
this today as we question, whether or not the resources that
you have are adequate. I understand, believe me, in strict
budgetary constraints that we all have, of what the financial
condition of the country is. But it is for the agencies to tell
the Congress what kind of resources are actually necessary, and
it is for us to prioritize when we do our appropriations
process. Just say you don't have enough resources, we need to
know what kind of resources are necessary, and that is one of
the things this committee has been trying to get at, certainly
this year, of what kind of resources actually are necessary,
because it is a Constitutional responsibility of the Congress
to secure our borders.
I believe that the American people--the majority of the
American people--have demonstrated over and over that they have
the political will to secure our borders, and it is for the
Congress to work together with the agencies, I believe, to make
sure that we can do the very best job that we can to secure our
borders.
Talking about prioritizing, I know that there have been
some comments made about not putting enough in the budget for
this. I would just mention--I have got the numbers here for the
fiscal year 2012 budget--in regard to ICE's removal operations,
the House-passed appropriation bill is in conflict with--which
was mentioned a little bit earlier here, actually mirrored the
President's request in all by categories.
Actually, for custody operations, the House plussed-up by
almost $27 million, which was for 600 additional detention
beds, and then we also plussed-up the Secure Communities by
another $10 million. So I think we are putting our money where
our mouth is in regards to prioritizing for border security.
Again, I would say, if we are only going to remove those
who have actually committed a crime, you know, we think about
9/11, for instance. That is why this committee even came into
existence, as a reaction to 9/11.
Four of the 9/11 hijackers were here on extended--or,
excuse me, overstayed visas, but yet, they had no criminal
background at all; they had never done anything other than
overstay their visa, and so they were here illegally, although
they hadn't gone out and assaulted somebody on the street
corner. I think that leads us to why we are concerned about
this administrative amnesty, how we can be proactive as a
Nation; reactive, after something happens.
I would also point out just the cost of illegals on States
and local governments, was mentioned, I think, by the doctor,
about the States and the localities are picking--the
municipalities are picking up so much of the expense. I have
seen some numbers as high as, you know, $10 billion to $15
billion of additional cost that the States and local
governments are absorbing because the Federal Government is
really not doing the jobs that we should do as adequately as we
can do.
So, in regards to this particular policy, I guess my
question for both the chief and Mr. Kibble, were your two
agencies involved in determining that this would be the new
policy, and do you completely support it? Do you have any
consternation with it that you may be willing to talk about on
the record, or--were you involved with this policy? Is this
something that you think is the best path forward in securing
our borders?
Mr. Kibble. Chairwoman Miller, as in policy formulation in
other areas, this was not developed in isolation within ICE,
speaking for ICE. It was a collaborative process including the
Department of Homeland Security and the White House, as well.
There were a couple--if I could just address a couple of
the points you had mentioned before, I do think it is important
to clarify that the prioritization does not--is not limited to
just criminal aliens. We are looking to promote public safety,
border security, and the integrity of the immigration system.
So if you look at our annual data, roughly 50 percent of it
are criminal alien removals, but then by definition, about half
of them are not. We are looking at repeat immigration
violators. We are targeting recent border entrants.
With respect to National security threats, we are also--
have programs that we have established in response to 9/11 to
address those concerns. So it really is taking these
resources--these 400,000 removals that we have--and trying to
maximize and use each and every one of them to the maximum
extent we can to promote public safety.
To your question in terms of whether I agree with it, I
think every law enforcement agency around the world exercises
discretion, because there is a recognition we have a finite
amount of resources and we all want to do the maximum we can to
promote a public good. So I do agree with this idea of smartly
and effectively approaching immigration enforcement, and again,
making every one, to the maximum extent we can, making every
one of those 400,000 removals count.
Mrs. Miller. So your testimony is that ICE, as an agency,
was involved with determining this particular path forward as
an administrative policy and that you are completely on board
with it?
Mr. Kibble. That is correct, ma'am. It was done in
collaboration with the Department of Homeland Security and the
White House, as well. With respect to the--again, I am a strong
supporter of exercising discretion and operating in a
prioritized way.
Mrs. Miller. Chief.
Chief Fisher. Chairwoman, any time that you can take a
look--and again, from the Border Patrol, it is certainly CBP's
perspective, what this does is this allows us and gives us
additional detention spaces. When you look at prioritizing
those cases--and by the way, when you look at the prosecutorial
discretion memo that Director Morton signed, certainly we
continue to work with ICE and to find out what, if any, changes
that we are looking at between the ports of entry, and I will
tell you one: As we are working through this right now, it is
going to allow us more detention capability for those entrants
that we apprehend between the ports of entry, and from a
prioritized enforcement standpoint we do support that.
Mrs. Miller. Just a question for Dr. Wasem. Last Wednesday
the President made some press because he was talking to an
audience about this particular policy and he said that the
statistics are a little deceptive, I think in order to play
down the significance of the number of removals, perhaps, under
his administration. I am not sure why he said the statistics
are a little deceptive, but as a statistician, or as you have
gone through the research, et cetera, do you think the
statistics are a little deceptive?
I guess I would also ask you, in regards to amnesty that,
for instance, as we mentioned, back in 1986, and you saw this
huge spike, do you think that this policy will--that we will
look at another spike as a result of this?
Ms. Wasem. Let me speak to your first--your second question
first, and that is, any time there is a magnet effect, and when
we have seen it in history, it is hard to measure that in
contrast to the ability to measure apprehensions, or the
unemployment rate, or other economic and demographic data. So
it has always been one of the unmeasurables, that it is
difficult to sort out the extent to which it has made a
difference. Often, when we see something that we could argue is
a magnet effect, it is coincidental with other factors and
forces at play, whether they are economic, or factors in the
sending countries, like devaluation of the peso, or natural
disasters.
So while most social scientists would recognize that there
can be magnet effects, a lot of it hinges on what is going on
in the sending countries and how aware they are, and how much
they understand the sending policy. Sometimes it could be a
misunderstanding of a policy that could create this. So it is
not something that can be empirically demonstrated.
I must confess that I did not hear the President's speech
that you are referring to, so I don't feel able to respond to
that question, if you----
Mrs. Miller. Okay. I understand that. That is fine.
At this time, the Chairwoman will recognize the Ranking
Member, Mr. Cuellar.
Mr. Cuellar. First of all, let me just, again, refer to
this letter of November 4, 1999, that is signed by, again,
Henry Hyde, Lamar Smith, a series of very prominent
Republicans, David Dreier, and other folks, including Nathan
Deal, which, by the way, has the toughest immigration law. He
also signed this letter.
It goes on, and they are asking for prosecutorial
discretion. In fact, there they say the principle of
prosecutorial discretion is well established, and then they go
on why the need for prosecutorial discretion.
In fact, if you look at ICE power--authority--comes in
under the Homeland Security Act of 2002, where they gave you
the exclusive authority to prosecute all removal proceedings.
So you got that from the 2002 law.
Also, the Supreme Court has recognized that the exercise of
discretion is generally not subject to questioning or review,
and agents--agencies' decision not to prosecute or enforce,
whether it is civil or criminal, is committed to the agencies'
absolute--and I emphasize, absolute discretion. This is the
Heckler v. Chaney case--U.S. Supreme Court's 1985 case that we
have.
Also, as Ranking Member Thompson mentioned a few minutes
ago, when we passed the homeland security bill--the
appropriation bill--specifically, there was $1.6 million that
was provided to identify aliens convicted of crime who may be
deportable and who may pose a serious risk of public safety or
National security issues. They didn't say everybody; they just
said that is the work.
In fact, it goes on, Members--and we all voted for this, or
at least the ones that voted for it; I think I voted against
it--that the Secretary shall, ``prioritize the identification
and removal of aliens of--convicted of a crime by severity of
that crime.'' So you all, everybody voted--or at least the ones
that voted for this, you voted for this particular bill. So I
think to come back now and say, there is no--you know, we
shouldn't be doing this, we should have all voted no on that
homeland security and moved on at that time.
Mr. Kibble, let me ask you, $1.6--what is your cost--
billion dollars, let us assume that bill would have passed, you
would follow the appropriation bill, right, to follow and say,
``Go after the more--aliens with criminal records,'' is that
correct?
Use your mike, yes.
Mr. Kibble. I am sorry, sir.
We have been operating under the 2010 appropriations
language that directs us to expend $1.5 billion, focused on the
identification, apprehension, and removal of criminal aliens.
Just to put that in perspective, the enforcement and removal
operations component within ICE is the principal agency that
affects civil immigration enforcement. That represents, you
know, better than half of the resources that have been devoted
to immigration enforcement--that component----
Mr. Cuellar. How much does it cost to remove one alien--
identify--ICE?
Mr. Kibble. For ICE resources it costs roughly $10,000. We
have brought that down----
Mr. Cuellar. Right. $10,000, and let us assume that the
appropriation bill that got passed this year, this one--I know
it is still in the Senate--$1.6 billion--it went up from $1.5
billion to $1.6--taken it costs you $10,000, how many aliens
could you--criminal aliens could you deport using those
numbers, roughly?
Mr. Kibble. Roughly, we are still at about an overall
population of about 400,000 removals, and we anticipate that
within those resources with--being able to maintain detention
space at a roughly 33,400 beds, that we will be able to
continue to increase the criminal aliens removed within that
overall population of roughly 400,000.
Sir, just to kind of make a point, the record-breaking
immigration enforcement we have done over several years--and I
am proud of the folks that have done this--this has continued
into fiscal year 2011. We are continuing to break records
moving in excess of 200,000 criminal aliens in this just most
recent fiscal year concluded.
Mr. Cuellar. The next three--I mean, if you continue for
your 3 years that would match the 8 years that the prior
administration had in removing criminals and you keep going at
the pace that you are going?
Mr. Kibble. It has been several years, now, of record-
breaking immigration enforcement.
Mr. Cuellar. Okay.
I have a question for Ms. Wasem. You did some research on
amnesty. When was the only time we really have had amnesty in
the United States that you are aware of?
Ms. Wasem. Well, the major legalization legislation passed
in 1986. There are a variety of other smaller----
Mr. Cuellar. The President was----
Ms. Wasem. That was President Ronald Reagan.
Mr. Cuellar. Okay. All right.
I have no further questions.
Mrs. Miller. Thank you very much.
Just before I recognize the gentleman from Mississippi, I
hadn't seen this letter that my Ranking Member keeps referring
to, and we are going to make sure all the Members of the
committee do get a copy of this. But I would just note one
thing on the letter that is being referenced: We are talking
about removing criminal aliens, but as you read the letter it
is talking, actually, about removal proceedings against legal
permanent residents--legal permanent residents, not criminal
aliens. I would just mention that.
At this time I would recognize the gentleman from
Mississippi, Mr. Thompson.
Mr. Thompson. Thank you very much.
Mr. Kibble, you indicated that it costs ICE about $10,000
per alien to be deported. It has been factored in that the
overall cost to the Federal Government is about $23,000 per
alien.
I put on the map--on the screen--that if there are 11
million unauthorized aliens, and if it costs $23,000 per alien,
that will cost us to eradicate the problem about $257.6
billion. For the sake of comparison, what is ICE's total annual
budget?
Slightly less than $6 billion.
[The information follows:]
Mr. Kibble. Yes, sir.
Mr. Thompson. Okay. Given the reality of slightly less than
$6 billion coupled with the potential to solve the problem, so
what is your driving factor in deciding to exercise
prosecutorial discretion?
Mr. Kibble. The key thing, sir, is to, again, use the
400,000 or so removals that we are resourced to complete in a
given year and to use those in a way that is going to remove
public safety threats from our communities, promote border
security through partnership with Customs and Border Protection
in targeting recent border violators, and also responding and
restoring to the integrity of the immigration system, for those
folks that are immigration fugitives, that are defying an order
of removal or that are gaming the system through fraud.
So using those resources--those finite resources that are
available to us, in this past fiscal year 90 percent of our
overall removals fell within those priorities--90 percent.
Roughly 54 percent of that 400,000 were criminal alien
removals. But again, our priorities extend broader than just
criminal aliens.
Mr. Thompson. Chief, in the application of ICE's
prosecutorial discretion, has that harmed or helped CBP's
ability to perform its stated responsibilities?
Chief Fisher. Congressman, it has helped us because it has
allowed additional beds that would--we would require under a
consequence delivery system, so it has helped.
Mr. Thompson. So your testimony is that ICE's use of
prosecutorial discretion has allowed you to have more beds
available to do your job?
Chief Fisher. Yes, Congressman. In those areas where that
has been implemented--and again, because this is an enforcement
process, any time that we can, subsequent to our arrests--and
by the way, just for clarification, when we are talking about
prosecutorial discretion, Border Patrol agents are still and
will continue to arrest everybody that enters this country
illegally. There is no discretion there. I just want to make
sure that we understand that correctly.
Subsequent to the arrest, when we look at final disposition
following the consequence delivery system, to the extent that
we have additional bed spaces either for the consequence
delivery system or for final disposition, that helps out our
ability to control the border, and that is our intent.
Mr. Thompson. Dr. Wasem, you have reviewed the history of
prosecutorial discretion. Have you seen the application of this
both during Democratic and Republican administrations? If so,
have you found the application to be different?
Ms. Wasem. In the memorandum and guidance that I have
reviewed from 1975 forward, certain themes are common
throughout: The humanitarian concerns, the resource issues, and
other enforcement priorities. The main thing that struck me
about the latest set of memorandum is the specificity, in that
it lists 18 factors. Now, those factors fit in the broader
categories that the earlier memos mentioned, but it is--the
level of specificity is a little different.
Also, the August letter that Secretary Napolitano sent to
Senator Durbin proposed as a structure that would be reviewing
the process. That actually reminded me a bit, as a response to
something that I referenced in my written testimony, that
William Howard wrote about in his 2005 memo and how things had
changed organizationally from the days when it was Immigration
and Naturalization Service and everybody was in the same agency
to one of the issues they were facing in 2005, where people
were in different agencies and different parts of the country.
So whether or not the Napolitano letter is really going
back to what it was like under one agency by putting something
at the Departmental level or whether it is going to take us in
new directions really remains to be seen. It is too soon to
tell.
Mr. Thompson. Thank you very much.
I yield back, Madam Chairwoman.
Mrs. Miller. The Chairwoman now recognizes the gentleman
from Texas, Mr. McCaul.
Mr. McCaul. Thank you, Madam Chairwoman.
Let me first just commend the ICE agents who every day put
their lives on the line, and particularly those serving under
very dangerous conditions in Mexico.
To the Ranking Member, I agree, we need more resources. I
think, you know, we talk to our friend, Judge Ricardo Hinojosa,
and he will tell you that not only do we need more agents, we
need more judges and prosecutors.
As a former Federal prosecutor, I understand the concept of
prosecutorial discretion. It is nothing new. Prosecutors
exercise it every day, and they have to. You have to look at
violent crime versus non-violent crime. So I understand all
that.
What I was confused about is when this policy came out and
it caused some controversy--I think a lot of my constituents
view it as an amnesty program; I think most of my constituents
do not agree with amnesty--but what was confusing was the New
York Times reports that administration officials said, in
commenting on this new policy, that those who qualify for
relief can apply for admission to work in the United States and
will probably receive it.
So call this whatever you want, but when administration
officials say that through the New York Times, it appears to me
that the administration is saying, ``Look, if you are a
noncriminal alien we are just going to allow you to stay in the
United States, and beyond that, we will let you apply for work
permits.'' So it has the appearance of the administration in a
back-door way is pushing a guest worker or amnesty program,
call it what you want, but allowing illegal aliens to stay in
the country and apply for work permits.
So, Mr. Kibble, I asked, in a prior hearing, a Homeland
Security official this very question, and he couldn't answer
it. Can you tell me if this is the policy of this
administration?
Mr. Kibble. Sir, as you acknowledged, the discretion is
something that goes back decades. With respect to the
particular application in this group, the working group that
has been established, including both senior professionals from
both the Department of Homeland Security and the Department of
Justice are working on criteria to go through what amounts to
roughly 300,000 active cases that are on the immigration court
docket.
As they look at--as they go through that they are going to
be looking to exercise discretion, and we anticipate that it
will be very narrow. We anticipate that it----
Mr. McCaul. My time is a little--and I understand that. I
understand prioritizing the criminal cases. As the Ranking
Member said, we need to be careful about our messaging.
Is it the policy of this administration to allow
noncriminal aliens to stay in this country and apply for work
permits?
Mr. Kibble. No. That doesn't appropriately characterize the
policy, sir. In fact, even once--through this process, if these
cases--some of these cases that qualify for discretion, where
we choose to exercise discretion are set aside, first off, it
is done on a case-by-case basis--a case-by-case individual----
Mr. McCaul. So those that you choose not to prosecute, are
they allowed to stay in the country and apply for work permits?
Mr. Kibble. They can certainly apply for work
authorization, but there is no automatic grant of work
authorization.
Mr. McCaul. But it is the policy of this administration
that they can stay in the country and possibly apply for work
permits?
Mr. Kibble. The policy focuses more on unclogging the
immigration court docket so that we can accelerate our high-
priority----
Mr. McCaul. You know, I get that. I understand all that.
But it is the message that we are going to allow the non-
criminal alien to stay in the country and apply for work
permits. I think that is the core issue with this new policy.
I still haven't got a very clear answer to that. You know,
if Mohamed Atta, the leader of the hijackers, who had a non-
criminal record--didn't have a criminal record, had overstayed
his visa, if he was pulled over in a traffic stop would he be
let go and allowed to stay in the country and apply for a work
permit?
Mr. Kibble. No, sir, because our priorities extend to non-
criminal immigration violators as well, so those presenting
National security threats--again, if you just look at our
removal numbers, roughly half of them are not considered
criminal aliens----
Mr. McCaul. So what would be the threshold for a--okay, you
have got non-criminal and criminal. What is the threshold,
then--he gets pulled over for a traffic stop. Is that enough to
deport him? I don't think it is, under your policy.
Mr. Kibble. Sir, I can't speak to that particular--I mean,
every officer has been empowered with the ability to look at
the merits of that particular case and exercise discretion at
any point in the continuum. What we seek to do is to exercise
it earlier, but I will tell you that our officers are very
concerned about public safety, and in this case you pose a
National security example. If we don't know what we have we may
choose to move forward if we establish that the alien is
potentially removable, arrest them, look at biometrics,
continue to develop information and process that person for
removal.
Mr. McCaul. Let me just close by saying, you know, I am
concerned about this from a National security standpoint, as
well. I hope you factor that in in these cases.
Last, again, I don't know who these administration
officials were that said this, and I don't--I haven't got a
clear answer whether this--that is the policy of this
administration, but I think that kind of statement from this
administration really calls into question this policy.
Prosecutorial discretion is nothing new, as you and I have
talked about, but to say that they can stay in the country and
apply for work permits, that goes a whole step further, and
actually goes around, I think, the will of the Congress.
So with that, Madam Chairwoman, I yield back.
Mrs. Miller. The Chairwoman now recognizes the gentleman
from Michigan, Mr. Clarke.
Oops. Excuse me. I am sorry.
The Chairwoman now recognizes the gentleman from
Mississippi, Mr. Thompson.
Did you have your time?
Mr. Thompson. Well, do you want me to go again?
Mrs. Miller. No, okay, it is Mr. Clarke. I am sorry.
You looked up----
Mr. Clarke.
Mr. Clarke. Yes, thank you, Madam Chairwoman. I yield my
time from the gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. I think the gentleman yields his order
rather than his time, Madam Chairwoman.
Mrs. Miller. Gentlelady from Texas is recognized.
Ms. Jackson Lee. I don't want Mr. Clarke to give up his
time.
But let me thank you very, very much for your presence here
today. I am going to call each and every one of you a patriot.
Thank you so very much for your service to this Nation.
I have worked with all of you. I know your work, Doctor,
and certainly have worked with Customs and Border Patrol and
the Border Patrol separately, and, of course, ICE, over many,
many years.
Chief Fisher, I just want to ask you, do you have the
necessary resources? I think we were reading an article about
the efforts on the Southern Border; I know our Chairwoman comes
from the Northern Border and work is necessary there, but it is
intense work, is it not, Chief?
Chief Fisher. Yes, it is.
Ms. Jackson Lee. Are you further enhanced--it is not a
perfect system, but are you further enhanced--I introduced a
major amendment in about the mid--either 2000s--I am trying to
remember when I have been on this committee, so I think it was
in the mid- to early 2000s where we talked about helicopters,
night goggles, computers, new equipment. You have received some
of that, is that not correct?
Chief Fisher. Yes, ma'am. That is----
Ms. Jackson Lee. Does that enhance your ability to do the
work--the night work--that is required when there was an
intensity of individuals coming over? Does that enhance your
work?
Chief Fisher. Yes, ma'am, it has.
Ms. Jackson Lee. Do you see a decided decline, partly,
maybe, because of our economy--not saying a cessation of those
coming, the kind of immigrants that have been coming for work
that we have seen that have just been coming over either
reunite with family or for work? Have you seen some of the
impact of your work along with maybe the economy impacting
those coming over?
Chief Fisher. Yes, we have.
Ms. Jackson Lee. But you see repeat offenders, I assume?
Chief Fisher. Yes, we do.
Ms. Jackson Lee. All right. Those repeat offenders, I
think, are described as a felony now. I think the law, or the
1996 laws describe those individuals as felons that keep coming
back and forth. Is that----
Chief Fisher. If, in fact, they have been formally removed
on their--an earlier apprehension and they were formally
removed, if we catch them a subsequent time and the U.S.
attorney chooses to prosecute, that could be a felony, yes,
ma'am.
Ms. Jackson Lee. Could you use more resources, Chief?
Chief Fisher. Certainly. But before we would say yes, we
need more, and then the question is, well, what do you need,
because of the infusion of resources, both in terms of
personnel and in particular, technology, you know, one of the
things that we are looking at now is two things in particular:
No. 1, do we have the resources in the areas of highest risk?
In other words, do we need to move some of those resources in
areas where traditionally we didn't have the level of control
which we do now?
No. 2, how do we deploy those types of resources? You know,
we look at the largest civilian air force, and the capabilities
that CBP has, in particular, the field commanders within the
Border Patrol, and, as you have mentioned, some of the
technology, both in terms of the mobile surveillance systems,
and the mobile surveillance capabilities, the unattended ground
sensors, the fleers, all of those--the unmanned aerial
surveillance systems that have come on within CBP--gives us a
huge capability.
Ms. Jackson Lee. Thank you, Chief, very much.
Let me quickly, I appreciate the collaborative work between
Chairwoman Miller and Ranking Member Cuellar, but we know that
this is a ``get you'' hearing. This is an order that has come
down from our leadership--the Republican leadership. It is to
spend your time getting the President as we move toward 2012.
Every committee has that responsibility, and this is another
``get you.''
My good friend from Texas, who I work with quite well, Mr.
McCaul, has put on the record that we need more resources for
our prosecutors and judges. He is absolutely right. The
Southern district is overburdened with the number of
immigration cases.
But let me ask Mr. Kibble, who we have worked with, let me
just put on the record very quickly that prosecutions for
illegal reentry have jumped more than two-thirds since 2008.
That is under the Obama administration. President Obama has
already deported around 1.1 million immigrants--let me make it
very clear--more than any President since Dwight D. Eisenhower.
[The information follows:]
Ms. Jackson Lee. Let me make that very clear: 1.1 million.
Officials say the numbers will not decline, but at a time when
the dynamics of a--immigrations are--goes on to say a lot of
other things.
Immigrations and Customs Enforcement spent $2.25 billion
sending back 180,229 people. I think a lot of people would like
that money to go for creating jobs.
So, Mr. Kibble, let me just ask you, do you think that ICE
is doing its job?
Mr. Kibble. We are always looking for ways to improve and
find more----
Ms. Jackson Lee. Absolutely. Are you doing your job to the
best of your ability now?
Mr. Kibble. With the resources that are available we are
breaking records in virtually every----
Ms. Jackson Lee. Every single day. Would you use more
resources under the mandate that is not an unintelligent
mandate, which is to get rid of the criminal aliens? Would you
do that if you had more money?
Mr. Kibble. We could obviously do more with more, but we
would still be operating with--in terms of priorities, because
the violations so far outstrip the resources that are
available.
Ms. Jackson Lee. I just want to put this into the record,
but I think this was utilized, it says $23,000 per alien, 11.2
million unauthorized aliens, it would cost us $257.6 billion.
Many of these are students and individuals who are here simply
trying to access legalization.
I further want to just comment, Madam Chairwoman, this is a
letter that I signed that you mentioned that is on--I am not
sure what your interpretation, but I will just say that this
sentence clearly indicates that it was people writing to
suggest, ``We write you because many people believe that you
have the discretion to alleviate some of the hardships and we
wish to solicit your views as to why you have been unwilling to
exercise such authority in some of the cases that have
occurred.''
So, those of us who signed--Henry Hyde, now deceased, our
esteemed Chairman of the Judiciary Committee, Barney Frank,
Lamar Smith, my co-Ranking Member on the Immigration Committee,
and Sheila Jackson Lee, and many others, were trying to say
that you are wasting your monies on individuals that are just
here versus getting the criminal aliens. That is what we wrote
in 1999.
I would yield back to the Chairwoman.
Mrs. Miller. Thank the gentlelady.
We all now have a copy of this letter that was written 12
years ago, and I think we can all look at it and see what we
see here. It says, removing criminal aliens, they brought that
to the attention. In the second paragraph it says, ``However,
removal proceedings against legal, permanent residents,'' and
then they go on with the rest of the letter. So again, I wasn't
here 12 years ago.
But at this time--recognize the Ranking Member.
Mr. Cuellar. Yes, if you don't mind, because I--let me
clarify that letter.
You know, first of all, they are talking about removals,
they said in some cases. So they are talking about criminal
aliens, but they said, but in some cases they may be legal,
permanent residents who have had aggravated felonies. So they
are even saying, let's go ahead and help these folks that have
had felonies--felonies, felonies, felonies, felonies--and all
this.
Then they go on, you know, they have obtained jobs, they
are self-sufficient, they have started families in the United
States--by the way, this is a Republican saying this--so--and
then they talk about--and this is a very important thing, is
they goes on and I am--it goes on and they are saying, you
know, there is widespread agreement that deportations were
unfair and resulted in unjustifiable hardship. Not Democrats
saying this, but Republicans.
It goes on, we just ask why INS pursued removal in such
cases when so many other more serious cases existed. Therefore,
this is why they are asking a prioritization.
Madam Chairwoman, just so everybody is clear about this
letter, I would ask that--I would ask your permission and the
committee's permission that I introduce this letter, dated
November 4, 1999, into the record.*
---------------------------------------------------------------------------
* The information has been submitted previously by Mr. Cuellar.
---------------------------------------------------------------------------
Mrs. Miller. Absolutely, without objection----
Voice. Would the gentleman yield?
Mrs. Miller [continuing]. We are going to introduce it to
the record because I think it is important that we--that
everyone has an opportunity to read this--legal permanent
residents.
Voice. Would the gentleman yield?
Mrs. Miller. At this time I am going to recognize--go on
through our questions here, and we will have the second round
if we need to.
Voice. Okay.
Mrs. Miller. I would recognize the gentleman from South
Carolina, Mr. Duncan. We are recognizing in order of the
Members who were present at the start of the hearing.
Mr. Duncan. Okay. Thank you, Madam Chairwoman, and
appreciate you having this particular hearing.
I thank the witnesses for being here today for this very
important topic.
But as I sit here and I think, we should ask ourselves, why
is this hearing on administrative amnesty so important, I want
to applaud the Chairwoman for defining amnesty for us. I
actually had looked it up on my iPad and was going to do that
as well.
But let me tell you, the folks that I represent in South
Carolina fully recognize--fully recognize--what most Americans,
I think, agree on, and that is that we have a serious illegal
immigration problem in this country. We have heard today
criminal versus noncriminal, but I scratch my head and think
that are not all illegal immigrants who entered the sovereign
Nation known as the United States of America not criminal in
some aspect, because they have violated the sovereign laws of
this Nation by entering this country through illegal means, or
staying in this country beyond their visa, which is against the
law?
So at what point in time do we choose which laws we are
going to enforce and which laws we are not going to enforce as
a Nation? By us choosing not to enforce certain laws, does that
not water down our legal system as a whole?
Director Kibble, listening to the testimony and hearing Mr.
McCaul ask you some questions about folks that are stopped with
a traffic stop, and whether they are National security threats
or other things, I wonder, President Obama's uncle was recently
arrested on suspicion of driving under the influence, which was
a crime. News reports indicate that he had a deportation order
since 1992 but was never deported.
I understand that Mr. Obama was freed from ICE recently
under an order of supervision. If our deportation process is
not robust enough to successfully deport someone with a 19-
year-old deportation order, why should Americans have any
confidence that we can deport terrorists and criminals who pose
a threat to public safety?
Mr. Kibble. Sir, with respect to that particular case, DHS
privacy rules limit what I can discuss on that. I know some of
that was inappropriately and in an unauthorized way leaked to
the media. That is a subject of a separate OIG investigation.
However, there are some things I can confirm. He was
referred to us by the local police. He had been entered into
proceedings. As you indicated, he has been released and is
under an order of supervision, and he is not being treated any
differently than any other alien in similar circumstances as we
continue to pursue the matter.
But this is--I mean, the proceedings sometimes take an
extended period of time to ultimately affect a successful
removal.
Mr. Duncan. I realize there are 12 to 20 illegal aliens in
this country. That is a number that is thrown around. I believe
we don't really know what the true number is.
I know that it is very costly, as has been pointed out by
the other side of this argument, that it would be very costly
to round those up and send them home. I get that.
But if we stop someone through normal law enforcement and
we realize that they are here overstaying their visa, they are
here illegally, they can't prove that they are here on a legal
status, we have got that person. Why are we choosing not to
deport them?
Mr. Kibble. Sir, again, I mean, depending on the
circumstances of the case, different officers may make
different decisions in terms of when and how to exercise
discretion based on----
Mr. Duncan. But these are the easy ones. These are on the
ones we know. We are not having to round them up out of the
shadows. We are not having to go to the employers and check the
immigration status of every one of their employees.
This is somebody we have, we stop, we realize that they are
here illegally. It is the easy--it is the low-hanging fruit, so
to speak. Why not deport these guys?
Mr. Kibble. We do remove a number of those, sir. I mean, I
indicated before--first off, we have not reduced immigration
enforcement in any way. As I have indicated previously, we are
removing more people than ever in the history of our agency. On
top of that, while 50 or so percent are criminal aliens, we are
removing other folks that fall within these other areas that we
are concerned about, that include immigration fugitives, recent
border violators, and even though I say 90 percent of our
overall removals are in prioritized areas, there is also 10
percent for folks that do come across our radar because we are
not going to ignore the law.
Mr. Duncan. I thank you.
I will yield back the balance of my time.
Mrs. Miller. Thank the gentleman.
The Chairwoman now recognizes Mr. Rigell, from Virginia.
Mr. Rigell. Thank you, Madam Chairwoman.
I join my colleagues today in thanking----
Mr. Thompson. Madam Chairwoman, I think according to the
rules of the committee, Ms. Jackson Lee is next. Mr. Clarke
yielded his time to her, but----
Mrs. Miller. He actually yielded his order, not his time.
Mr. Thompson. He said he yielded his time. I mean,
everybody was clear on that.
Mrs. Miller. I will ask the parliamentarian, since I want
to exercise my discretion and make sure everyone who is here
got a chance to ask.
According to the parliamentarian, my interpretation is
correct. I am just trying to make sure that everybody who was
seated here on time is getting their opportunity to ask their
question, and certainly other Members will have their
opportunity on a second line of questioning here.
Mr. Thompson. The only thing I am trying to get clarity on,
Madam Chairwoman, is Mr. Clarke was clear in yielding his time.
It was his time----
Mrs. Miller. His order.
Mr. Thompson. Right. He yielded his 5 minutes to Ms.
Jackson Lee. It was not Ms. Jackson Lee's time. It is now her
time, according to the order and rules of committee.
Now, you are the Chairwoman----
Mrs. Miller. Well, I will ask the parliamentarian again.
Which do you agree?
I have got to ask my attorney here.
Ms. Jackson Lee corrected Mr. Clarke and said he was
yielding his spot in the order. The Chairwoman is going to
exercise what I think are the rules of the committee and make
sure that everybody has an opportunity to ask questions.
At this time, I would recognize Mr. Rigell, from Virginia.
Mr. Rigell. Thank you, Madam Chairwoman.
I join my colleagues today in thanking ICE and the Border
Patrol for the brave work that is being done. I join
Congresswoman Lee in just referring to you as patriots. I
believe that is true. So thank you.
You know, an essential part of leadership and management is
the allocation of limited resources, so the idea that we are
providing judgment in this area does not at all surprise me. In
fact, I think it is a good thing.
Having said that, I think that to develop--to define and
announce a specific plan that really nails down exactly why we
are going to really go after and who we are not, I think it
either by design or default is an unwise policy, and I will
tell you why. Let us consider a town, for example, that is
having fiscal stress, and it causes a sharp decrease in the
amount of money that is being given or allocated to the police
department.
I think it would be unwise for the chief of police to come
out and to be very specific on exactly what laws are not going
to be enforced. Maybe, ``Okay, we are not going to give anybody
a ticket 15 miles or under on speeding,'' for example. You
know, we are really making clear here, I think, what is a safe
haven. Again, either by design or default, I don't think that
is a wise plan.
Mr. Kibble, in light of that, I would like to ask you, sir,
if--for a person who is outside of our borders presently who
has an understanding of this new policy--and it is a change in
direction, indisputably--do you think that this new policy
either increases or decreases or has no effect on his or her
likelihood to enter the country--and we are assuming this is a
person who does not have a criminal background and has no
criminal intent?
Mr. Kibble. Sir, I would say that, you know, since 2009 we
have already been exercising discretion and we have not seen
flows across the border, although I will defer to Chief Fisher
in terms of what he has observed. In fact, we have seen
declines.
But speaking directly to your point, one of our priorities
is recent border violators, and when we talk about recent we
define that--we think of that in terms of years, not months. So
I think that right there clearly sends a message that if you
are crossing--if you are attempting to cross the border you are
not getting a free pass. You are going to remain a priority for
us for years.
Mr. Rigell. With respect, Mr. Kibble--and I have learned in
my short time in Congress, I really don't like interrupting
people, but this clock ticks and you only have 5 minutes, and
you really want to make sure the point is made. I am not asking
for, you know, metrics here, or the fact that we are sending
more back than ever before. Those facts are not in dispute, and
I applaud that progress.
I am asking you to get into the mind of a person
contemplating coming over illegally. My specific question was--
and I think I covered the universe of alternatives--does it
increase, decrease, or have no effect on that person's
mindset--their thinking that they may be able to, ``get away
with it,'' or be able to stay in our country illegally?
Mr. Kibble. Sir, and that was the point I was trying to
make, is that because we are making clear that we are targeting
people that if they cross the border--if they are not currently
in the United States and they cross the border there is going
to be a period of years where they are still on our radar and
they are still a priority for us to go after them and remove
them.
Mr. Rigell. I appreciate I think a genuine attempt, on your
part, to answer the question. I am not sure it was really
answered there.
Chief Fisher, let me ask you the same question, if I may.
Does it affect the mind of the person contemplating coming to
this country? Or, let's make it even easier. Let's just say a
person is in this country illegally. When they hear of this
policy--they are nonviolent; they are not a threat to public
safety--does it increase, decrease, or have no effect on their
mindset that they are concerned that they are going to be
detained and possibly deported?
Chief Fisher. For those individuals that are contemplating
coming into this country illegally today, tomorrow, or next
week, I can tell you they will be arrested. No classes of
individuals will not be amenable to the level of discretion
that we are discussing today. They are recent entrants, and
although we are doing it on a case-by-case basis, border
security between the ports of entry we take very seriously.
We look at discretion and we look at the application of
prioritizing bed spaces and case loads, that is different than
our mission within the Border Patrol, sir.
Mr. Rigell. I would submit to you that the only answer to
those questions is absolutely yes, it does decrease their
concern about entering our company--our country or staying in
our country illegally. For that reason I don't think it is a
wise policy.
Thank you.
Mrs. Miller. The Chairwoman now recognizes the gentlelady
from Texas.
Ms. Jackson Lee. Thank you very much, Madam Chairwoman.
Thank you to my colleagues for their kindness and their
indulgence.
Since I was one of the Members who was there at the time of
the 1999 signing and want to give the interpretation that I
think is appropriate to the letter that was submitted by my
Ranking Member, Mr. Cuellar, dated November 4, 1999. What you
have to remember is that at that time there was a question
about the deportation of individuals who had never been back,
who had come here as babies, children. There was a sizable
Polish community in Boston, Massachusetts, that was being
unevenly, or how should I say--it was being heavily targeted.
Many of these individuals had never been to Poland and had
juvenile offenses that were now coming to fruition, and many of
them now were being deported. We heard from the Polish
community, and many of the signees on here were from that
region.
The sentence that is relevant, ``However, cases,'' and I
would like to share this, ``cases of apparent extreme hardship
have caused concern. Some cases may involve removal proceedings
against legal, permanent residents who came to the United
States when they were very young and many years ago committed a
single crime at the lower end of the aggregated felony spectrum
but have been law-abiding citizens every since, obtained and
held jobs, and remained self-sufficient and started families in
the United States.''
So the issue was, these were legal, permanent residents,
but what was happening with the new laws, because of the felony
issue, if they were picked up they were being deported. They
had families; they had never been back to Poland, or wherever
else they might be sent--a somewhat similar analysis to where
we are today.
One paragraph, then, says, ``True hardship cases call for
the exercise of such discretion, and over the past year many
Members of Congress have urged the INS to develop
guidelines''--notice the old terminology, INS--``to develop
guidelines for the use of its prosecutorial discretion.''
Mr. Kibble, what I understand the administration's policy
is not a get out of jail key, as I understand it. It is to use
the appropriate discretion to ensure that those who would do us
harm, those who have offended the legal system, are your--those
who are threats to society are your chief priorities. Is that
my understanding?
Mr. Kibble. That is correct, ma'am. It is to accelerate
these high-priority removals through what is currently a
clogged system due to some of the issues that have been raised
earlier today, in terms of limited immigration judges and other
resources.
Ms. Jackson Lee. You do not make the law, and if, for
example, we pass a comprehensive immigration law that provided
access to citizenship and put people in a line that had no
interest in doing anything but being part of this great
society, which I call, still, this great Nation--for me this
Nation has never missed a step or a beat; we are a great Nation
with great democracy and great rights. You would follow that
law, as well, if that was passed by the Congress, signed by the
President of the United States?
Mr. Kibble. Yes, ma'am. As a senior career official in the
agency, our role is to take the laws and the policies that are
handed to us and implement them in the most effective way we
can.
Ms. Jackson Lee. And to follow the law. So if there is an
analysis that has been made that a college student that came
here at age 2, graduated from high school, got accepted into a
college because of various different State laws, that that may
not be at the top of ICE's priority right now, based upon the
interpretation that comes to you from the Government?
Mr. Kibble. Yes, ma'am. Director Morton's memo of June 17
clearly states, though, that we are going to look at a whole
range of factors and consider the merits of each individual
case, and then determine on a case-by-case basis, based on that
analysis, whether someone should be afforded extended
discretion. I should just say, ma'am, that does not confer
legal status.
Ms. Jackson Lee. I understand. We welcome that, but we also
know that while you are doing that you achieve a lot of human
resources in doing so. But we welcome that.
Finally, I am sorry that Mr. Duncan had to bring up a
connected relative of our President. I don't know how many
other Members of Congress who come from immigrant backgrounds
that may have had similar circumstances.
Thank you for awarding the President of the United States
both privacy, but also the recognition that nothing
inappropriate occurred. Is that correct, sir, to your
knowledge?
Mr. Kibble. Again, I would say that this case is being
treated no differently than any other case that we would handle
with meeting these consistent circumstances.
Ms. Jackson Lee. Okay.
Then I would finally suggest, again, 1.1 million that have
been picked up and deported by the Obama--President Obama
administration, although the President has clearly said his
position, as it is my position, to support comprehensive
immigration reform I believe would be the solution to your task
so that you could focus on issues.
Finally, the cleric that was killed, I think it would be
absurd to suggest that if he was stopped in a car that local
police would not be sensitive enough to his connectedness that
someone would not detain him. Would you think that would be a
reasonable response?
Mr. Kibble. Yes, ma'am, although in the particular case I
think it was a reference to Awlaki, who is actually a U.S.
citizen, so it would be a different context within the----
Ms. Jackson Lee. Well, then you are absolutely right. It
would be a different context. You would expect someone else to
be dealing with his particular situation because he is a U.S.
citizen. But if there was a non-U.S. citizen with connectedness
like the U.S. cleric, now deceased, you would be able to find
some way to detain that individual.
Mr. Kibble. In the days after 9/11 we actually created
programs specifically focused on those particular
vulnerabilities and ensuring that we had a close lash-up with
the Joint Terrorism Task Force in coordination with the
National Counterterrorism Center and a whole range of other
interagency efforts to make sure that we are guarding against
National security threats.
Ms. Jackson Lee. Well, let me thank you very much, again,
for your service.
I yield back. Thank you.
Mrs. Miller. The Chairwoman now recognizes the gentleman
from Arizona, the new father.
Mr. Quayle. Thank you, Madam Chairwoman. Thank you for
holding this hearing.
I want to thank all our witnesses for being here today and
want to echo the sentiments of how proud we are of the CBP men
and women and the men and women of ICE. They do a great job.
We have had a lot of talk about cost today, and one of the
things that hasn't been mentioned is the cost of--how much cost
illegal immigration puts on the U.S. Government. It is about
$113 billion a year. The vast majority of it is actually taken
up by State and local governments--about $84 billion, according
to some reports.
Now, the States and locals--in my State of Arizona we
constantly have to try to come to Washington to get payback for
the amount of funds that we use as State level from the Federal
Government because of illegal immigration. We are inundated by
this for a long time.
So, we have talked in here that--illegal immigration, this
is a Federal rule, because--we in Arizona know that because we
tried to pass a law, or we passed a law, that was going to
enforce the Federal law, but then we got sued by the DOJ. The
problem here, as Mr. McCaul was kind of pointing out, is that I
understand prioritization, but it is the grand scheme of things
from the administration that gives some--especially in my home
State of Arizona--pause, saying that we are not going to be
enforcing our immigration laws and we are not going to be
securing the border the way that we can by not allowing--having
these big beacons for people to come in illegally.
I think it points to what was noted in the New York Times
piece, but also what the President has been saying, himself,
saying that we are not--he said recently in a town hall format
that we are not going to be going after young people who did
nothing--who didn't break any other laws besides being here
illegally. So that grander scheme of things shows that, you
know, we will have an amnesty by administrative policy.
For those of us in Arizona, that is a huge concern for us.
It is a big concern also because as we have made great strides
along the border, especially in the Yuma sector, but the Tucson
sector still has a lot of work to be done, and the one thing
that was actually great for the Yuma sector was Operation
Streamline, and it showed that there was going to be teeth for
people and repercussions for people who came across illegally.
Now, we are talking about we are still going to have
enforcement when people are coming across the border and we are
going to continue to work on that, but one thing I wanted to
ask you, Chief Fisher, because you said, you know, you take it
seriously--and I know you guys do down there--but once they get
inside and once they actually get past that first sector--and,
Mr. Kibble, you were talking about once you are here for just a
few years, or a couple, you are still on the radar--how do you
know how long they have been in America if they came across
illegally and we didn't apprehend them? We have no way of doing
that.
So, Chief, that is what--and Mr. Kibble, both--how do we
know that once somebody is in the United States how long they
will be? Because that is where you were saying if they are in
for a short amount of time they would still be on the
prioritization of deportation, but I don't know how you can
actually determine how long somebody has been in here if they
came in illegally and weren't apprehended actually at the
border.
Chief Fisher. Well, sir, the first point I would like to
address in terms of the Streamline case, we are right now--40
spots per day from Yuma are being allocated in the Yuma
district for those cases in Tucson. I will also say that
Streamline, as an independent program, it is a lot stronger
within the consequence delivery system than as a stand-alone
program because we are seeing reduced recidivism and
reapprehension rates within the CBS. So I just wanted to at
least--just so you know, we are taking some of those
recommendations from this particular committee and moving
forward with those. We have this year and we will continue next
year.
When we apprehend an individual at the border and we do our
biometric checks, among other things, it tells us a lot about
those individuals. For those very small percentage of
individuals that we apprehend that have been in this country
for an extended period of time, there is a formal process. We
still do the biometrics; we have to identify who these
individuals are, if, in fact, they have a criminal history, and
we, on each one of those cases, work those with ICE to find out
the final determination.
Mr. Quayle. But there is no real way, if they don't have
any past history of coming across the border, right, and they
are actually inside the United States, past where the
enforcement areas really are, and if they picked up, is there--
there is no real determination on how many years, how many
months they have been in the United States illegally, correct?
Mr. Kibble, do----
Mr. Kibble. Sir, I mean, our officers and our
investigators, I mean, will--if they have an encounter and
someone meeting that category comes across their radar, I mean,
that is part of pursuing the process because we don't know what
we have and we may arrest them and we may continue to move them
through the process until they demonstrate some sort of
evidence that they have been here in a manner that perhaps
takes them outside of our priorities.
But even if they are outside of our priorities, we are not
saying we are going to ignore the law, in terms of non-priority
removals. As I mentioned earlier, 10 percent we are removing
that aren't priorities.
Mr. Quayle. You are right. You have said that, but the
problem is that other officials, and including the President,
has been saying other things--not that we are not just going to
enforce the law, but we are just not going to go after people
and we are not going to enforce it against a certain people who
are here illegally. I know it is not what you are saying right
now, but when the President and other administration officials
do say that, I mean, that is--words matter, and that actually
does provide a magnet for people because they realize,
especially once the economy gets back roaring again, which I
hope it does soon, we are going to see, as we have seen
historically, an uptick in illegal crossings.
Mr. Kibble. Sir, may I----
Mr. Quayle. Yes, absolutely.
Mr. Kibble. Speaking to the magnet point, again, we are not
reducing immigration enforcement in any way, and I am sorry I
am repeating myself, but I am proud of what my guys have done--
my guys and gals have done. I mean, we are breaking records,
and again, in virtually every category.
With respect to the magnet in particular, I haven't talked
about worksite enforcement yet, but that is the motivator. That
is what fuels a lot of illegal migration.
We have been breaking records in that category as well. We
have brought criminal charges against more than 200 employers,
up from last year, which was a previous record. We have
initiated 3,000 investigations. We have audited more businesses
than we have before.
All of that helps to address the magnet, in terms of trying
to dry up those opportunities that fuel that migration.
Mr. Quayle. I applaud that, and I think that you guys have
been doing a great job. I just think that why this hearing was
actually called was because of the concern that the overall
narrative that has been coming out of the administration--not
specifically, you know--I mean, you have been addressing this
today, but the overall narrative is that--and with the magnet--
is that what is going across and what people are hearing is
that if you can come across and get through where the Border
Patrol agents are at the border and get into the United States
and you just follow the law, except for that you broke the law,
then you are going to be able to stay and we are not--and the
United States Government is not going to--now, you are saying
that obviously we are not going to be doing that, but that is
just the message that has been getting out.
Mr. Kibble. Sir, I do want to be clear, though. I mean, our
focus, our emphasis is on the priorities. But the point I want
to make is that when non-priority aliens that we encounter may
come across our radar we are not just ignoring that.
I mean, with each one of those 400,000 removals we want to,
to the maximum extent possible, make each one of them count in
terms of promoting public safety. If you think about a 40 to 60
percent National recidivism rate on criminal offenders, it is
no stretch to say that when we remove 200,000 aliens from our
communities, from our country, we are preventing thousands of
crimes. I think it just makes good sense to pursue a
prioritized approach, as I think many have agreed, although----
Mr. Quayle. Right. I think that the prioritization, we
understand it, it is just the overall narrative that has been
coming out of certain parts of the administration, it changes
that dynamic from, ``Hey, we are going to go after this,'' to,
it goes, ``We are not going to go after that.'' That is the
thing that a lot of us have problems with. So thank you for
your clarification.
Thank you, Madam Chairwoman. I yield back.
Mrs. Miller. I thank the gentleman.
Let me, again, sincerely thank all of the witnesses for
their testimony today. It has been a very interesting hearing.
Obviously, as I said at the outset, we have some significant
differences on the committee about whether or not this is
administrative amnesty. My personal belief is it clearly is,
and that in no way diminishes our respect for the brave men and
women in the Border Patrol or in ICE and the work that you do
all the time.
I will just note that--because I know we brought this up
when your--Mr. Morton has been here, in June of last year, as
has been widely acknowledged, there was a vote of no confidence
by the ICE union rank-and-file members with Mr. Morton. I also
believe that--that is why I asked you specifically, Mr. Kibble,
whether your testimony was that you had been actively involved
in this policy and that ICE supports it--your rank-and-file,
your union president actually testified in front of the
Judiciary Committee recently--I won't go through his whole
testimony here, but basically they don't like this policy, at
least that was their testimony to another committee. So I would
just mention that.
Again, for the record, I have the letter that was referred
to by my Ranking Member. We will put that in the record. There
is a lot of--I will let people read it and determine what you
think. We will use our own discretion as to what was meant 12
years ago.
But I will say that, obviously, that letter was written
before
9/11. This subcommittee, our last hearing was actually about
visa overstays, and we are talking today about whether or not
this new policy is going to incentivize those to cross the
border illegally.
I think--it is my opinion--that it will also incentivize
those who really mean us harm, those that are not just coming
here to advantage themselves economically. That is probably the
biggest concern that I have about this, as I mentioned in my
opening question or testimony that--opening statement, is that
many of the 9/11 hijackers had overstayed visas.
These are individuals who may want to have sleeper cells,
what have you. Believe me, they are not going to be out being
caught drunk driving, leaving a bar after 2 o'clock and
assaulting some woman, or whatever.
So that is a concern, because they won't be criminal--they
won't have a criminal record. I think that there is just a big
cause for concern there when you see that--we have heard
different numbers, whether it is 40 percent, 47 percent--in the
40 percentile--of all the illegals that are here in this
country are on visa overstays, as well.
Of course, the visas are going through the Department of
State, and we had somebody, because of our oversight that we
were doing in this subcommittee, as I think we were doing our
job to talk about visa overstays, all of a sudden, I don't know
whether it was coincidence, serendipity, the day of our
committee hearing a fellow came from State and said that they
now have a new policy, which is good, to take a look at these
kinds of things. But there has been great consternation about
this.
Before we close the committee I would recognize my Ranking
Member for any further comments.
Mr. Cuellar. Yes. Thank you, Madam Chairwoman. Again, I
appreciate the good working relationship that you and I have
had, and of course, the Members all working in a bipartisan
way.
We do have a few differences, as you can tell today, on
this particular issue, but I think we are all trying to achieve
the same goal and trying to secure our country. I am also
encouraged that my colleagues on the other side, the Majority,
are reading the New York Times and quoting from the New York
Times. I am also very encouraged that they are also listening
to what the unions are saying, also.
So I am very encouraged that we are at least looking at
different perspectives. But in all seriousness, I just want to
join the Madam Chairwoman in saying this, that we appreciate
all three witnesses for being here.
I, in particular, want to point out the work that ICE has
done--the work that ICE has done. John Morton has, under very
difficult circumstances, has really done a tremendous job in
three--almost in 3 years doing more than, you know, the other 8
years in the prior administration. I know it is hard, but
again, if we give you $1.5 billion and then raise it up to $1.6
we are going to still end up with 400,000 or so folks that we
can deport, and that is what the resources are.
So hopefully we will come together in a bipartisan way, and
I know we do have a few differences but we are all trying to do
the same thing.
Madam Chairwoman, I thank you for all the courtesies.
Mrs. Miller. Thank you, Ranking Member, very much.
Again, we thank the witnesses, and certainly applaud and
support the work that is done 24/7 by your departments and your
brave men and women.
Thank you, Doctor, for coming, as well, from CRS. You did
very well today. Very interesting testimony.
With that, the hearing record will be open for 10 days if
any further questions come from any subcommittee Members here
today. With that, thank you very much. The committee will be
adjourned.
[Whereupon, at 11:46 a.m., the subcommittee was adjourned.]