[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ASYLUM FRAUD:
ABUSING AMERICA'S COMPASSION?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND BORDER SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 11, 2014
__________
Serial No. 113-66
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Immigration and Border Security
TREY GOWDY, South Carolina, Chairman
TED POE, Texas, Vice-Chairman
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
RAUL LABRADOR, Idaho JOE GARCIA, Florida
GEORGE HOLDING, North Carolina PEDRO R. PIERLUISI, Puerto Rico
[Vacant]
George Fishman, Chief Counsel
David Shahoulian, Minority Counsel
C O N T E N T S
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FEBRUARY 11, 2014
Page
OPENING STATEMENTS
The Honorable Trey Gowdy, a Representative in Congress from the
State of South Carolina, and Chairman, Subcommittee on
Immigration and Border Security................................ 1
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on
Immigration and Border Security................................ 3
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6
WITNESSES
Louis D. Crocetti, Jr., Principal, Immigration Integrity Group,
LLC
Oral Testimony................................................. 9
Prepared Statement............................................. 12
Jan C. Ting, Professor of Law, Temple University Beasley School
of Law
Oral Testimony................................................. 20
Prepared Statement............................................. 21
Hipolito M. Acosta, former District Director, U.S. Citizenship &
Immigration Services (Houston) and U.S. Immigration &
Naturalization Service (Mexico City)
Oral Testimony................................................. 24
Prepared Statement............................................. 27
Eleanor Acer, Director, Refugee Protection Program, Human Rights
First
Oral Testimony................................................. 31
Prepared Statement............................................. 34
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Trey Gowdy, a Representative
in Congress from the State of South Carolina, and Chairman,
Subcommittee on Immigration and Border Security................ 80
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 141
Material submitted by the Honorable Trey Gowdy, a Representative
in Congress from the State of South Carolina, and Chairman,
Subcommittee on Immigration and Border Security................ 215
Material submitted by the Honorable Steve King, a Representative
in Congress from the State of Iowa, and Member, Subcommittee on
Immigration and Border Security................................ 221
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Ranking Member,
Subcommittee on Immigration and Border Security................ 237
Prepared Statement of Michael Comfort, President, Comfort Western
Enterprises LLC................................................ 240
ASYLUM FRAUD:
ABUSING AMERICA'S COMPASSION?
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TUESDAY, FEBRUARY 11, 2014
House of Representatives
Subcommittee on Immigration and Border Security
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10:08 a.m., in
room 2141, Rayburn House Office Building, the Honorable Trey
Gowdy (Chairman of the Subcommittee) presiding.
Present: Representatives Gowdy, Goodlatte, Poe, Smith of
Texas, King, Jordan, Labrador, Holding, Lofgren, Conyers,
Jackson Lee, and Garcia.
Also present: Representative Chaffetz.
Staff present: (Majority) George Fishman, Chief Counsel;
Dimple Shah, Counsel; Andrea Loving, Counsel; Graham Owens,
Clerk; and (Minority) David Shahoulian, Minority Counsel
Mr. Gowdy. Welcome. This is a hearing on asylum fraud. The
Subcommittee on Immigration and Border Security will come to
order.
[Disturbance in hearing room.]
Mr. Gowdy. Will the Capitol Police please remove the
protestors?
The Subcommittee on Immigration and Border Security will
come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
We welcome our witnesses today.
Perhaps I am a little late in saying this, but I will say
it nonetheless. We are delighted to have everyone here. If you
disrupt the hearing, you will be removed. This is your one and
only warning. Other Committee Chairmen may give you more than
one warning. This is the one that I am going to give you. So if
you want to participate, we are delighted to have you. If you
want to protest, you can leave now or the police will escort
you.
With that, I welcome all of our witnesses.
And I will recognize myself now for an opening statement
and then the Ranking Member and then the Committee Chairman.
If you want an American version of running of the bulls,
stand at the bottom of the steps after votes on a fly-out day.
We are all in a hurry to get home, and I am probably the worst
culprit of all. A few weeks ago, a young boy and his sister
were at the bottom of the steps waiting on me. Mr. Gowdy, Mr.
Gowdy, do you have a minute? The young boy was 10 and his
precious little sister was either 3 or 4. The first time I
asked her, she held up three fingers and then she held up four.
So we kind of agreed on 3 and a half.
I picked the little girl up and asked her brother what I
could do to help him. I did not know if he wanted to talk about
education. I did not know if he wanted to talk about medical
research or immigration. What he said was he wanted was to pray
for me and that was all he wanted. He wanted to say a prayer.
So I held his sister and he said the most beautiful prayer at
the foot of our Capitol.
I think about that little boy and his sister from time to
time, and I thought about them specifically over the weekend
when my friend, the Ranking Member, sent me an article on
people who were being persecuted in one country. And then a few
hours later, I saw another article on a man in Central Africa
whose throat was cut simply because he was a Christian.
So we have the contrast between the greatness of this
country where even a young boy and his sister can petition
their Government at the foot of the Capitol, literally waiting
on their Representative to practice the freedom of expression,
the freedom of assembly, and the freedom of religious
expression by openly praying in the shadow of the Capitol. And
you contrast that with the reality that in other countries, you
face persecution for your beliefs. You may be put to death for
the possession of a book that we swear all of our witnesses in
on in court. You may be denied access to education because of
gender. You may be persecuted or killed if your religious
beliefs do not match the religious beliefs of the majority. You
will be victimized and the criminal justice system will be
closed to you because you do not believe the right things or
look the right way.
Our fellow citizens recognize the gift we were given by
being born in a land that values and practices religious
freedom, and because we realize how fortunate we are, compared
to the plights of others, there is a tremendous generosity of
spirit we feel toward those who were born into, or live in
oppression, discrimination, persecution, and retaliation.
Americans are generous in spirit and that generosity is
evidenced by our willingness to help, but Americans expect that
generosity will be respected and not abused. We expect those
that seek to come here are honest and fair in their petitions.
We know that there are survivors of inconceivable and heinous
atrocities. We are outraged. We are sympathetic. And more than
just sympathy, we are willing to open our country to provide
those in need with a refuge, with a sanctuary with safety and
dignity. And about all we ask in return is that the system not
be abused and that that generosity of spirit not be taken
advantage of.
So today we will examine how we can protect the integrity
of our asylum program while ensuring we will not extend this
special benefit to those who seek to take advantage or, worse
yet, exploit American generosity to do us harm.
With that, I would recognize the gentlelady from
California, the Ranking Member.
Ms. Lofgren. Thank you, Mr. Chairman. And I appreciate your
comments recognizing the importance of the asylum system.
America really stands as a beacon of hope and freedom
around the world, and part of being that beacon of hope and
freedom is our refugee program and our asylum program. Really,
if you think back to the origins of the current asylum program,
it was really put into shape after World War II when, much to
our continuing shame, the United States turned away Jewish
refugees who were fleeing Hitler who were then returned to
Germany and who died in concentration camps. That was a wake-up
call to the world and to the United States, and we put in place
our asylum system.
Recently there has been discussion of broad immigration
reform, and I was encouraged that there might be some
opportunity to move forward on a bipartisan basis. I still have
that hope. But there has been concern expressed not only about
immigration reform and the President, which I think is quite
misplaced since the President has removed 2 million people in
his first 5 years in office, more than President Bush removed
in his 8 years in office, and there is vigorous enforcement of
the immigration laws.
But I also think that there is concern--and I have
discussed this with the Chairman and I think I understand the
origin--with the title of this hearing and the allegations not
by the Chairman but by some that this is a system racked with
fraud.
Recently The Washington Times did a report citing an
internal assessment of the asylum system, prepared by USCIS,
but the report was from 2009. And they said that the audit
finds the asylum system ripe with fraud. That is actually a
gross mischaracterization of the USCIS assessment. And the odd
thing is that the 2009 report was actually an assessment of
what was going on in the year 2005, a number of years before
President Obama actually was elected President. So I think it
is important that we deal with the facts.
And certainly the asylum system is not perfect. No system
that we as people can design--we always want to improve our
situation, but we need to recognize also that the system in
place in 2005 is not the same as today. We need to get the
facts out and recognize that the has done a great deal since
2005 to combat fraud, including placing fraud detection
officers at all asylum offices, placing fraud detection
officers overseas to aid in overseas document verification,
hiring document examiners and increasing the capacity to do
forensic testing of documents, providing its officers access to
numerous additional databases to assist in fraud detection, and
entering into additional information sharing agreements with
foreign governments to combat fraud.
I am happy to support smart changes that further assist
USCIS to eliminate fraud and advance its mission to assess
asylum claims in a fair and timely manner. These changes, I
think, could include hiring additional asylum and fraud
detection officers to reduce backlogs, balance workloads, and
expand the infrastructure for investigating potential fraud in
asylum applications; dedicating additional personnel and
resources to overseas document verification so that all
investigative requests are completed in a timely manner; taking
steps to ensure that ICE actually investigates referrals from
USCIS fraud detection officers concerning asylum fraud;
ensuring that ICE and DOJ dedicate appropriate resources to
fully prosecute persons and groups that defraud the immigration
system; and finally, assisting USCIS to expand training with
respect to detecting and investigating fraud in asylum and
other immigration applications.
But we should make these changes not with our hair on fire
because, as we address abuse, we must also address the many
ways that the current system fails to protect legitimate and
vulnerable refugees. We must ensure, for example, that our
immigration courts are properly staffed and resourced. As
funding for enforcement skyrocketed in recent years, funding
for the courts lagged behind, leading to massive backlogs.
These delays both increased the potential for fraud and prevent
timely protection for legitimate refugees. Adequate resources
are essential for maintaining the integrity and effectiveness
of the system.
I also think we should reconsider the 1-year filing
deadline which is barring bona fide refugees from receiving
asylum while undermining the efficiency of the asylum system.
The deadline does not bar cases because they are fraudulent, it
bars them based on the date they are filed, regardless of the
applicant's claim. And we certainly know of cases, a Christian
woman who was tortured and abused whose valid claim was denied
because of this arbitrary standard. We need to take a look at
that.
Our country can strengthen the integrity of the immigration
system and also provide asylum to refugees in a timely, fair,
and efficient manner. This fair and balanced approach is
consistent with the country's values and commitments, and I
believe it is something that all of us on this Committee can
embrace. Certainly none of us want to have a fraudulent
situation, but we do want to maintain our Nation's status as a
beacon of light and freedom in the world.
And with that, Mr. Chairman, I yield back.
Mr. Gowdy. I thank the gentlelady.
The Chair will now recognize the Chairman of the full
Committee, the gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for
holding this hearing. Thank you for the prompt action to get
the assistance of the Capitol Police to remove the protestors.
That was an unfortunate, but very necessary step to take.
And you know, when you see the passion of people like that
about this issue, one would only hope that they would actually
come to a hearing like this and stay and listen to the array of
different points of view that they will hear from our panelists
and from the Members of the Committee and the questions from
the Members of the Committee that reflect upon the seriousness
and complexity of these issues that need to be addressed. I
know that every hearing that I attend I learn more about how to
solve the problems that we have with our American immigration
policy.
So thank you for allowing us to proceed in this manner.
The United States of America is extremely hospitable to
immigrants, asylees, refugees, and those needing temporary
protected status. Our Nation's record of generosity and
compassion to people in need of protection from war, anarchy,
natural disaster, and persecution is exemplary and easily the
best in the world.
We have maintained a robust refugee resettlement system,
taking in more United Nations designated refugees than all
other countries in the world combined. We grant asylum to tens
of thousands of asylum seekers each year. We expect to continue
this track record in protecting those who arrive here in order
to escape persecution.
Unfortunately, however, because of our well justified
reputation for compassion, many people are attempting to file
fraudulent claims just so they can get a free pass into the
United States.
The system becomes subject to abuse and fraud when the
generous policies we have established are used for ideological
goals by the Administration. It also becomes subject to abuse
when people seek to take advantage of our generosity and game
the system by identifying and exploiting loopholes.
The House Judiciary Committee recently obtained an internal
document demonstrating that U.S. Citizenship and Immigration
Services' National Security and Records Verification
Directorate's Fraud Detection and National Security Division
completed a report in 2009 on asylum fraud in cases considered
by asylum officers. They studied a sample of asylum
applications that were affirmatively filed between May and
October 2005. Pursuant to the report, a case was classified as
fraudulent if reliable evidence pertaining to the applicant's
asylum eligibility proved a material misrepresentation and the
evidence was more than just contradictory testimony given by
the applicant. If the indicators of fraud existed and pertained
to the applicant's asylum eligibility, but fraud could not be
confirmed by evidence external to the applicant's testimony,
the case was classified as exhibiting ``indicators of possible
fraud.'' A total of 12 percent of cases, 29 out of 239, were
found to have proven fraud and an additional 58 percent, 138
cases, had indicators of possible fraud, for a total 70 percent
rate of proven or possible fraud.
The Obama administration refused to make these findings
public and has, to my knowledge, done nothing to address the
concerns raised by the report. Instead, they felt their time
was better spent contesting the report's methodology and hiring
private contractors to rebut the findings of fraud. We have
asked USCIS for any reports ever generated by the private
contractors, but no such report has been provided to date.
The only check suggested in the 2009 FDNS report that is
mandatory, and has been since 2006, is the US-VISIT check. All
other checks in the report are currently discretionary. The
report also states: ``As a result of information gleaned from
this study, FDNS plans to issue internal agency recommendations
to improve USCIS processes and fraud detection.'' According to
DHS, recommendations were made since 2009 but as of yesterday
they have not told us either what those recommendations were or
whether they had ever been implemented. Finally, USCIS made
clear that under this Administration, no other fraud reporting
analysis has been generated.
To make matters worse, under Obama's tenure, approval rates
by asylum officers have increased from 28 percent in 2007 to 46
percent in 2013. If an asylum officer does not approve the
application, it is referred to an immigration judge. Approval
rates by immigration judges of affirmative applications have
increased from 51 percent in 2007 to 72 percent in 2012.
Combining these two bites at the apple, the vast majority of
aliens who affirmatively seek asylum are now successful in
their claims. This does not even take into account the
appellate process.
Additionally, when DHS grants an asylum application, the
alien becomes immediately eligible for major Federal benefits
programs that are not even available to most legal permanent
residents, or not available to them for years. These programs
can provide many thousands of dollars a year in benefits to
each eligible individual.
In 2012, 29,484 aliens were granted asylum. I am sending a
letter to the Government Accountability Office to determine
what the cost of these benefits are to the American taxpayer.
If 70 percent of these grants were made based on fraudulent
applications, American taxpayers are being defrauded out of
hundreds of millions, if not billions, of dollars each year.
I am certainly not calling for reduced asylum protections.
On the contrary, asylum should remain an important protection
extended to aliens fleeing persecution. We merely seek to
improve the integrity of the existing asylum program by
reducing the opportunities for fraud and abuse while ensuring
adherence to our Nation's immigration laws.
An overwhelming amount of fraud exists in the process and
little is done to address it. Individuals are showing up in
droves at the border to make out asylum claims. Adjudicators
have the general mindset that they must get to ``yes'' in order
to have successful careers. It is apparent that the rule of law
is being ignored and there is an endemic problem within the
system that the Administration is ignoring. Failing to address
these problems undermines the good will and trust necessary to
develop a common sense, step-by-step approach to improving our
immigration laws. I look forward to addressing this disturbing
problem today.
Thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentleman from Virginia.
The Chair will now recognize the gentleman from Michigan,
the Ranking Member of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Gowdy.
Less than 2 weeks ago, I was optimistic that we had turned
a corner in the immigration debate when the Republican
leadership released its new set of immigration principles. And
although the principles were vague and subject to a wide range
of interpretations, they nevertheless signaled real promise. A
promise that my colleagues finally recognized the damage that
our broken immigration system causes every day to families and
businesses throughout the country. And a promise that this
House would finally move forward on reforming the system for
the good of us all.
But just 1 week later, all that promise is all but gone.
Why the sudden turnaround? Apparently it is all President
Obama's fault. Despite record deportations and the lowest level
of border crossings in the last 40 years, my Republican
colleagues say, in effect, they do not trust the President to
enforce our immigration laws.
Now, let me take this moment to assure them that the
President is enforcing our immigration laws vigorously, a lot
more than some of us would like. My district office, like many
other district offices in the House, can attest to this. Our
case workers spend days dealing with heart-wrenching
deportations and family separation. Nevertheless, this record
level of enforcement does not seem to be enough.
And so this weekend, the Senator from New York, Mr.
Schumer, offered a different approach. Pass immigration
legislation now but have it take effect in 2017 when a new
President is sitting in the Oval Office. Many Republicans
rejected this proposal as soon as they heard it. Even though
the offer would take Obama out of the equation, they did not
like it. Why? Those who gave a reason said it was because they
still do not trust Obama.
Now, this blame game and disregard for the facts is now
being reflected in today's hearing, unfortunately. Last week,
The Washington Times published an article about fraud in the
asylum system citing a 2009 report from the United States
Citizenship and Immigration Services. That report concerned
asylum claims from 2005, 3 years before President Obama took
office. Nevertheless, our majority seems to be blaming Obama
for that too, and they refuse to recognize that the system in
place today, while not perfect, is a vastly improved one from
the system in place in 2005. The 2009 fraud report itself
details several ways in which the system has been improved
since 2005. But I guess it is just easier to blame President
Obama.
The issue we will address today is important. We know the
number of people seeking asylum at our borders and in the
interior of our country has increased over the last 2 years,
and in some places at the border, the increase has been quite
dramatic. It is important that we figure out why this is
happening because only after that, can we figure out how to
deal with it in a responsible way. But that is not all we have
to do. Fixing our broken immigration system still lies ahead
for the Congress, and I stand ready to do the work that needs
to be done.
So let us begin the second session by bringing up the
bipartisan immigration bill that has already passed the Senate.
If not, let us instead consider some of the Republican bills
that I understand may be in the works. Let us just do something
because doing nothing is no more an option for us than it is
for the families that are being torn apart each and every day.
I thank the Chairman and yield back.
Mr. Gowdy. I thank the gentleman from Michigan.
Before we recognize our witnesses, I would ask unanimous
consent to add to the record, number one, a report by USCIS
entitled ``I-589 Asylum Benefit Fraud and Compliance Report,''
and number two, a DHS report entitled ``Detained Asylum Seekers
Fiscal Year 2012 Report to Congress.''*
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*See Appendix for this submission.
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I will now recognize the gentlelady from California who I
think also has----
Ms. Lofgren. Thank you, Mr. Chairman. I would like to ask
unanimous consent to place into the record statements from the
Evangelical Coalition, (the National Association of
Evangelicals, the Ethics and Religious Liberty Commission of
the Southern Baptist Convention, the National Hispanic
Christian Leadership Conference, Liberty Council, World
Relief); the U.S. Conference of Catholic Bishops; the Lutheran
Immigration and Refugee Service; Church World Service; Hebrew
Immigrant Aid Society; the United Nations High Commissioner for
Refugees; the Center for Victims of Torture; Torture Abolition
and Survivors Support Coalition; the National Immigrant Justice
Center; the National Immigration Forum; Immigration Equality;
and the American Immigration Lawyers Association, in opposition
to changes that would hinder protection of refugees and
asylees.
I would also ask unanimous consent to place into the record
a report from the Congressional Research Service outlining
trends in asylum claims, pointing out that we are actually much
lower in terms of asylum than in past years; and a letter from
the Honorable Carlos Gutierrez, Governor Tom Ridge, Senator Mel
Martinez, Governor Sam Brownback, Governor Jeb Bush, Grover
Norquist, and others in support of refugees; as well as a
letter from a broad coalition, including the Jubilee Campaign,
National Association of Evangelicals, Southern Baptists, and
others in support of changes to assist in refugee/asylee
adjudication.**
---------------------------------------------------------------------------
**See Appendix for these submissions.
---------------------------------------------------------------------------
Mr. Gowdy. Without objection.
We are delighted to have our panel today. I will begin by
asking you to please all rise so I can administer an oath to
you.
[Witnesses sworn.]
Mr. Gowdy. May the record reflect all the witnesses
answered in the affirmative.
I am going to introduce you en banc, and then--you can sit
down. I am going to introduce you en banc, and then I am going
to recognize you individually for your opening statement. The
lights in front of you mean what they traditionally mean in
life: yellow means speed up and red means stop.
So, first, Mr. Louis Crocetti. Recently retired, Mr.
Crocetti served the public for 37 years, 36 of which were
dedicated to administering and enforcing U.S. immigration law.
Mr. Crocetti started his immigration career as an immigration
officer and progressed through the ranks to hold career Senior
Executive Service level positions in both the Department of
Justice and Department of Homeland Security.
Shortly after retirement, Mr. Crocetti established a small
business consultancy to help agencies and companies improve
their effectiveness, efficiency, and integrity of current
immigration-based policies, processes, programs, and
operations.
Mr. Crocetti holds degrees in criminal justice and
jurisprudence from the University of Baltimore.
Mr. Jan Ting. If I mispronounce somebody's name--and I am
sure I will--I apologize in advance. Mr. Ting currently serves
as Professor of Law at the Temple University Beasley School of
Law where he teaches immigration law, among other courses. In
1990, he was appointed by President George H.W. Bush as
Assistant Commissioner for the Immigration and Naturalization
Service of the U.S. Department of Justice. He served in this
capacity until 1993 when he returned to the faculty at Temple.
He received an undergraduate degree from Oberlin College,
an M.A. from the University of Hawaii, and a J.D. from Harvard
School of Law.
Mr. Hipolito Acosta served as the District Director of the
U.S. Citizenship and Immigration Services in Houston under the
Department of Homeland Security in January 2004. He also
assumed the leadership of legacy INS Houston District in August
2002 and served in that capacity until the creation of the
Department of Homeland Security. Mr. Acosta began his career as
an agent with the U.S. Border Patrol where he received the
Newton-Azrak Award, the highest recognition given by the U.S.
Border Patrol for courage and heroism displayed in the line of
duty.
Following his retirement, Mr. Acosta co-founded and is the
managing partner of B&G Global Associates, an investigative
training and security company.
Mr. Acosta graduated from Chicago State University and Sul
Ross State University.
And finally, Ms. Eleanor Acer currently serves as Director
of Human Rights First Refugee Protection Program where she
oversees Human Rights First's pro bono representation program
and advocacy on issues relating to refugee protection, asylum,
and migrants rights. Under her leadership, Human Rights First
partners with volunteer attorneys in the United States to
obtain asylum for more than 90 percent of its refugee clients.
Before working for Human Rights First, Ms. Acer was an
associate handling Federal litigation at Kirkpatrick and
Lockhart.
She received her J.D. from Fordham University School of Law
and her B.A. in history from Brown.
With that, welcome to each of you. Mr. Crocetti, we will
start with you and recognize you for your opening statement.
TESTIMONY OF LOUIS D. CROCETTI, JR., PRINCIPAL, IMMIGRATION
INTEGRITY GROUP, LLC
Mr. Crocetti. Thank you, Chairman and Committee Members,
and thank you for the invitation to offer my very first
testimony as a private citizen. I think this will be much more
enjoyable.
Upon the abolishment of legacy INS and the creation of DHS,
I was recruited by senior leaders in the new USCIS to determine
the most effective way to detect and combat fraud in our new
and extremely vulnerable post-9/11 world. In standing up FDNS,
the Fraud Detection and National Security, we were in urgent
need of data that could focus on the most vulnerable areas. At
this point, both the GAO and the 9/11 Commission had issued
reports concluding that our legal immigration system was being
used to further criminal activities, the most significant of
which is known terrorists who entered and embedded themselves
in the United States between the 1990's and 2004.
In the absence of data from legacy INS, we developed two
tools or programs that would help us collect and analyze data
so that we could determine the types and volumes and indicators
of fraud that existed and focus our efforts accordingly, as
well as develop the systems, analytics-based systems, to make
an effort to identify the fraud indicators at the time filing
on the front end, which would have been unprecedented.
Today I will talk about the benefit fraud assessments
because it relates directly to the benefit fraud assessment we
are talking about. The other tool, however, I would like you to
research is the Administrative Site Visit and Verification
Program, which conducts post-approved compliance reviews to
determine fraud rates and percentages, an essential tool that
needs to continue to be done.
Between 2005 and 2008, FDNS completed eight benefit fraud
assessments, but due to internal differences of opinion about
methodology and other issues, we were only able to finalize
four. The asylum-based BFA is one of the reports that did not
get finalized. In that the draft report does not contain one of
the classification levels in Executive Order 13526, entitled
``Classified National Security Information,'' i.e., top secret,
secret, or confidential, I am willing to discuss it here in the
interest of national security and enhancing the integrity of
our legal immigration system.
One thing that is important to understand is the
evidentiary standard for asylum, a very low burden. The
applicant is more likely than not to be persecuted. If what he
or she is saying is true and there is no negative or derogatory
information to challenge the claim, asylum is likely to be
granted. There are no mandatory documentary requirements. The
possession of fraudulent identity or other documents or certain
misrepresentations such as those to get visas and travel
documents do not automatically disqualify an applicant.
The decision is discretionary and based almost entirely on
credibility. An applicant must, however, establish eligibility
and present a persuasive claim.
The methodology and case review process that we engaged
consisted of taking a random sampling of 8,555 cases between
May 1 and October 31st, 2005. And, yes, Congresswoman, that is
very old, old data, which is one of the things we must
question. Why do we have to use old data? These cases were
either approved or they are still pending as of January 1,
2006.
In the methodology review process, there were two stages,
levels of review. The first stage was FDNS field officers in
the field would pull the cases in their jurisdictions and
undertake a review. The second stage involved forwarding their
findings to headquarters for a senior review team to look at
the--holistically as a team to look at the findings and see if
there were any necessary changes.
In the stage one process, individual FDNS officers reviewed
all the available documents, files, and oftentimes more than
one file and other records. They also conducted a battery of
government and open-source systems checks. If no
inconsistencies or negative/derogatory information existed,
they classified the case as ``no fraud indicators'' and
forwarded it on to headquarters for the second level review.
If inconsistencies existed or derog or any negative
information, they felt an overseas verification of facts or
information would be helpful, they requested overseas
investigation.
If an overseas investigation was not likely to be of value
to help in the verification of information or events, they
categorized the case as containing ``indicators of possible
fraud'' and then forwarded it to headquarters for second-level
review.
If evidence of proven fraud, they simply categorized the
case as ``proven fraud'' and sent that into headquarters.
The actual study population consisted of 239. And working
with our Department of--DHS Office of Statistics using and the
principles of accounting at a confidence level of 95 percent
and a margin of error rate of plus or minus 5 percent. There
was a finding of fraud in 29 of those cases, so that is 12
percent.
I think one of the most important, however, percentages to
remember is the number of cases that did not contain fraud,
only 72 of the 239 cases. Thirty percent of those cases all
those FDNS officers and the senior review team categorized as
``no fraud.''
One hundred thirty-eight of the 239, or 58 percent,
contained possible fraud indicators. When including 27 of the
uncompleted overseas verification requests, that increased to
69 percent of possible indicators of fraud.
There were only 59 of the 239 cases to overseas for
information verification. Twenty-six of those 59, or 44
percent, were completed. We were unable to complete 17 of those
cases because of competing priorities within the State
Department and the unavailability of CIS in most of those
locations.
Initially all 59 overseas verification request cases were
determined to contain no fraud indicators, but in the second-
level review, the headquarters team did recategorize six, which
is a very insignificant number of recategorization, reflecting
the FDNS officers did a very good job in their review.
One hundred five of the 138 cases, 76 percent, were found
to have indicators of fraud and were placed in removal
proceedings. We do not have data on what happened to those
cases, but that is another issue with regard to the breakdown
of data collection and reports between DOJ and DHS,
specifically EOIR and CIS.
Thank you.
[The prepared statement of Mr. Crocetti follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Gowdy. Thank you, Mr. Crocetti.
Mr. Ting?
TESTIMONY OF JAN C. TING, PROFESSOR OF LAW,
TEMPLE UNIVERSITY BEASLEY SCHOOL OF LAW
Mr. Ting. Thank you, Mr. Chairman and Members of the
Committee.
In May 2011, the world's attention was focused on the story
of Nafissatou Diallo, a hotel housekeeper in New York, who
claimed she was raped by Dominique Strauss-Kahn, then the head
of the International Monetary Fund and thought to be a likely
future President of France.
How did Ms. Diallo, who was born in west Africa, come to be
working in New York? She subsequently admitted that while in
the U.S. illegally, she concocted a totally false story about
being raped in her home country of Guinea in order to obtain
legal asylum status in the United States. That admission is why
the prosecution of Mr. Strauss-Kahn could not proceed. Ms.
Diallo's lawyer opposed dropping the prosecution, arguing that
lying in order to get asylum was really not such a big deal,
that it was commonly done, and it was the understanding of many
people that that is how you get asylum in the United States.
She was not the only successful asylum claimant whose lies
are subsequently exposed. Back in 1999, another immigrant,
coincidentally also named Diallo, died in New York City as a
result of police gunfire and was discovered to have made
numerous false claims to gain asylum in the United States.
Amadou Diallo had claimed to be an orphan whose parents were
murdered, though his parents showed up at his funeral. And he
claimed to be from Mauritania although he was actually from
Mali.
While many are believed to obtain legal asylum status by
lying, most go on eventually to become U.S. citizens and the
lies they tell to get status are never uncovered.
The August 1st, 2011 issue of The New Yorker contains an
article beginning on page 32 called ``The Asylum Seeker'' by
Suketu Mehta, which tells in detail how illegal immigrants
educate themselves on how to construct stories which make them
sound like victims of persecution. The article features an
asylum claimant who was making a completely bogus claim of
having been raped. To strengthen her case, she attends group
therapy sessions for rape victims at a public hospital and
receives taxpayer-funded medications for her supposed
depression, which she throws away.
Such exposures of asylum claims are difficult to uncover,
and the difficulties are compounded when the number of asylum
applications is increasing. The total number of affirmative
asylum applications has more than doubled in the last 5 years,
exceeding 80,000 in fiscal year 2013. Over the same 5 years,
so-called credible fear asylum applications made at the border
have increased sevenfold from less than 5,000 to more than
36,000 in fiscal year 2013. I have seen statistics from USCIS
showing an approval rate of 92 percent for credible fear claims
in 2013.
What should be done? I have four suggestions.
First and most importantly, all proposed grants of asylum
should be routed through the U.S. State Department for comment
and an opportunity to object, as was done when I served at the
Immigration and Naturalization Service. I believe many of the
career civil servants now working at CIS would support this
proposal. Get the State Department involved. I think we can
only improve asylum adjudication by restoring a role for the
diplomats we trust to represent us in foreign countries who
have firsthand experience in those countries and who are
required to study their languages and cultures. They can call
upon specialized resources in every country to evaluate
questionable asylum claims.
Second, I think Congress may want to reconsider the role of
``credible fear'' in the expedited removal provision of the
immigration statute. The statute already provides that ``in the
case of an alien who is an applicant for admission, if the
examining officer determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be admitted, the
alien shall be detained for a removal proceeding under section
240.'' That is the standard that should be applied to all
arriving aliens.
Third, just as the credible fear standard may originally
have had some utility but has lost value as alien smugglers
game the system and spread the stories that work in
demonstrating credible fear, so the asylum statute itself,
section 208, while a useful addition to our immigration law
when added in 1980, may have lost some value as the stories
have been spread that work in convincing an adjudicator to
grant asylum.
I would like to see Congress consider enhancing section
241(b)(3), withholding of removal, by adding to that some of
the benefits of asylum like adjustment of status to a permanent
resident, and following to join for spouses and minor children
under certain conditions, with a goal of replacing the asylum
statute with a single enhanced withholding of removal statute
for the protection of refugees. That statute has and will have
a higher burden of proof than the asylum statute and should
therefore be less susceptible to fraud.
Fourth and finally, one last suggestion. Affirmative
applicants effectively get two bites at the apple on asylum. As
has been explained, if they are denied by the asylum officer,
they get a shot at the immigration judge. And I think there is
no reason to allow those two bites of the apple. Congress
should consider making the asylum officer rejection
determinative before the immigration judge and let the
immigration judge rule on other possibilities for relief,
including withholding of removal.
That concludes my testimony, and I again thank the
Committee for the opportunity to testify.
[The prepared statement of Mr. Ting follows:]
Prepared Statement of Jan C. Ting, Professor of Law,
Temple University Beasley School of Law
Thank you, Mr. Chairman and members of the committee, for the
invitation to testify on the subject of asylum fraud as an abuse of
U.S. immigration law.
In May, 2011, the world's attention was focused on the story of
Nafissatou Diallo, a hotel housekeeper in New York, who claimed she was
raped by Dominique Strauss-Kahn, then the head of the International
Monetary Fund and thought to be a likely future president of France.
How did Ms. Diallo, who was born in West Africa, come to be working in
New York? She admitted that while in the U.S. illegally, she concocted
a totally false story about being raped in her home country of Guinea,
in order to obtain legal asylum status in the U.S.\1\ Prosecutors
concluded that prosecution of Mr. Strauss-Kahn could not proceed in
light of that admission.
---------------------------------------------------------------------------
\1\ http://www.dailymail.co.uk/news/article-2018772/Nafissatou-
Diallo-Dominique-Strauss-Kahn-lawyers-accuse-maid-using-media-
campaign.html
---------------------------------------------------------------------------
While the U.S. has numerical limits on the numbers of legal
immigrants it admits every year, it has no numerical limit on the
number of refugees it accepts every year on the basis of their claim
for asylum because they face persecution in their home country on
account of race, religion, nationality, social group, or political
opinion. Illegal immigrants, once they enter the U.S. either illegally
or by overstaying a temporary visa, have a strong incentive to lie in
making an asylum claim in order to obtain permanent legal status to
work legally and qualify for becoming a U.S. citizen.
Asylum claims are currently ruled upon either by officers of the
Department of Homeland Security or by immigration judges of the
Department of Justice in the course of deportation proceedings. If the
story is found to be credible and convincing, and to meet the legal
standard of a well-founded fear of persecution on account of race,
religion, nationality, social group, or political opinion, and if the
story-teller has not been convicted of a crime, the request for legal
permanent residence in the U.S. on grounds of asylum is usually
granted.
Outside groups monitor the adjudicators to identify and apply
political pressure on any whose asylum approval rate is lower than the
average, or who approve some nationalities less than others, even
though each case is supposed to be decided on its own set of facts.
Ms. Diallo is not the only successful asylum claimant whose lies
are subsequently exposed. Back in 1999 another immigrant, also named
Diallo, died in New York City as the result of police gunfire, and was
discovered to have made numerous false claims to gain asylum in the
U.S. Amadou Diallo had claimed to be an orphan whose parents were
murdered, though his parents showed up at his funeral, and he claimed
to be Mauritanian, though he was actually from Mali.\2\
---------------------------------------------------------------------------
\2\ http://www.nytimes.com/1999/03/17/nyregion/his-lawyer-says-
diallo-lied-on-request-for-political-asylum.html
---------------------------------------------------------------------------
While many are believed to obtain legal asylum status by lying,
most go on to eventually become U.S. citizens, and the lies they tell
to get status are never uncovered.
The August 1, 2011, issue of the New Yorker contains an article,
beginning on page 32, called ``The Asylum Seeker'' by Suketu Mehta,
which tells in detail how illegal immigrants educate themselves on how
to construct stories which make them sound like victims of
persecution.\3\ The article features an asylum claimant from Africa who
is making a completely bogus claim of having been raped. To strengthen
her case, she attends group therapy sessions for rape victims at a
public hospital and receives taxpayer-funded medications for her
supposed depression, which she throws away.
---------------------------------------------------------------------------
\3\ http://www.newyorker.com/reporting/2011/08/01/
110801fa_fact_mehta
---------------------------------------------------------------------------
Other stories of brazen lies told by illegal immigrants in pursuit
of asylum include the case of Adelaide Abankwah, championed by feminist
and human rights figures. The U.S. Court of Appeals for the Second
Circuit granted asylum to Abankwah in 1999 over the objections of the
Immigration and Naturalization Service, which later proved fraud in her
application including a stolen name and false passport. She was tried
and convicted of perjury and passport fraud.\4\
---------------------------------------------------------------------------
\4\ Mary Beth Sheridan, ``Ghanian Woman Convicted of Fabricating
Tale'', Washington Post, Jan. 17, 2003, page A1, http://
www.highbeam.com/doc/1P2-246521.html
---------------------------------------------------------------------------
See also the case of the Nigerian imposter calling himself Edwin
Mutaru Bulus whose bogus asylum claim was exposed only after a
sympathetic story was published in the New York Times.\5\ Xian Hua
Chen, an illegal immigrant from China was convicted of perjury on his
asylum application.\6\
---------------------------------------------------------------------------
\5\ http://www.nytimes.com/1997/05/24/nyregion/doubts-cast-on-
identity-of-nigerian-who-says-he-s-a-political-refugee.html
\6\ U.S. v. Chen, 324 F.3d 1103 (9th C., 2003), http://
openjurist.org/324/f3d/1103/united-states-v-chen
---------------------------------------------------------------------------
Such convictions and exposures of false asylum claims are difficult
and expensive to attain. And the difficulties are compounded when the
number of asylum applications is increasing.\7\ The total number of
affirmative asylum applications has more than doubled in the last five
years, exceeding 80,000 in FY2013. Over the same five years, so-called
``credible fear'' asylum applications made at the border have increased
sevenfold from less than 5,000 to more than 36,000 in FY2013.\8\ I have
seen statistics from USCIS Asylum Division showing an approval rate of
92% for credible fear claims in FY 2013.\9\
---------------------------------------------------------------------------
\7\ For a recent story of how aliens are smuggled into the U.S. to
make asylum claims, and the pressures on immigration judges who reject
those claims, see Frances Robles, ``Tamils' Smuggling Journey to U.S.
Leads to Longer Ordeal: 3 Years of Detention'', New York Times, Feb. 2,
2014, http://www.nytimes.com/2014/02/03/us/tamils-smuggling-journey-to-
us-leads-to-longer-ordeal-3-years-of-detention.html
\8\ Cindy Chang and Kate Linthicum, ``U.S. seeing a surge in
Central American asylum seekers'', Los Angeles Times, Dec. 15, 2013,
http://articles.latimes.com/2013/dec/15/local/la-me-ff-asylum-20131215
\9\ Data Provided by U.S. Citizenship and Immigration Services
(USCIS) to House Judiciary Committee on December 9, 2013
---------------------------------------------------------------------------
The concept of ``credible fear'' was instituted by the former
Immigration and Naturalization Service as an informal screening device
for the large numbers of Haitian people interdicted via boats on the
high seas headed for the United States after the Haitian coup of 1991.
The idea was that people interdicted via boats who could not articulate
a credible fear that could qualify them for asylum would be repatriated
to Haiti without further deliberation.
At that time it was unclear whether the U.S. had any legal
obligation to boat people interdicted on the high seas under the
Convention and Protocol Relating to the Status of Refugees or under
U.S. law. It was hoped that the credible fear determination would
satisfy any basic requirement for an individual hearing that might
subsequently be required by U.S. courts.
Overwhelmed by increasing numbers of interdicted boat people,
President George H.W. Bush in 1992 issued an executive order
authorizing the direct return to Haiti of its nationals interdicted on
the high seas, without any screening at all.\10\
---------------------------------------------------------------------------
\10\ Executive Order 12807, 57 Fed.Reg. 23133 (1992).
---------------------------------------------------------------------------
That policy was harshly criticized by candidate Bill Clinton during
the 1992 presidential campaign. Those of us who worked to implement
President Bush's policies were gratified when the incoming Clinton
administration announced on the eve of inauguration day, that despite
earlier criticism, it would continue the Bush administration policy of
repatriation to Haiti without any screening interview. The Clinton
administration ended up defending that policy against its critics in
federal court, and won a significant victory when the U.S. Supreme
Court sustained the policy by an 8 to 1 vote and held that neither the
Convention and Protocol on Refugees nor asylum and withholding
provisions of U.S. immigration law apply to U.S. repatriations from the
high seas.\11\
---------------------------------------------------------------------------
\11\ Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).
---------------------------------------------------------------------------
My point is that the credible fear test was developed on the fly as
a temporary screening device to facilitate repatriations from the
interdictions of large numbers of people on the high seas headed for
the U.S. without authorization. It is at best an unintended consequence
for the credible fear test to be used to facilitate the entry into the
United States of undocumented immigrants who present themselves at the
border without having to prove their eligibility for asylum.
Two final points: The increasing numbers of asylum applicants is a
not just a problem for the U.S. Anyone looking at recent developments
in Western Europe, Australia, Canada, even Israel, can see that for
many reasons including the worldwide recession, continuing turmoil and
conflict, and rising expectations, the number of asylum seekers who
need to be processed has risen and will continue to increase throughout
the world. Policy planning should reflect this reality.
And it bears repeating that the international and U.S. legal
standard for who is a refugee and therefore eligible for asylum in the
U.S., at the discretion of the U.S. government, is more restrictive
than the broader, more colloquially used concept of refugee. Those
fleeing poverty, joblessness, and economic stagnation in their home
countries do not qualify under the legal standard for refugees. Those
seeking better education, health care, and opportunities for their
children do not qualify as refugees. Those fleeing high rates of crime
and generalized violence in their home countries do not qualify as
refugees. Those fleeing natural disasters, however acute, do not
qualify as refugees.
What should be done?
First, all proposed grants of asylum should be routed through the
U.S. Department of State for comment and an opportunity to object.
There's no simple solution to the false asylum claims, but I think
the Department of State foreign service officers as a group are better
able to determine actual conditions in various foreign countries, and
therefore more likely to detect false stories and recognize the truth,
than asylum officers or immigration judges based exclusively in the
U.S.
The role of the Department of State in the adjudication of asylum
claims was reduced and then eliminated because during the Reagan
administration, that department was thought to favor asylum claims from
countries whose governments the administration opposed, like Nicaragua,
and to reject asylum claims from countries whose governments the
administration supported, like El Salvador and Guatemala.
But the reality is there are always going to be some political
pressures on these decisions, and there are strong political pressures
today on the adjudicators at the Departments of Homeland Security and
Justice. Political pressures on asylum adjudications can be mitigated
by involvement of the State Department. Adjudicators with high
rejection rates can defend themselves by presenting State Department
comments.
I think we can only improve asylum adjudication by restoring a role
for the diplomats we trust to represent us in foreign countries, who
have first-hand experience in those countries, and who are required to
study their languages and cultures. They can call upon specialized
resources in every country to evaluate questionable asylum claims.
Second, Congress might want to reconsider the role of ``credible
fear'' in the expedited removal provision of the immigration
statute.\12\ The statute already provides that ``in the case of an
alien who is an applicant for admission, if the examining officer
determines that an alien seeking admission is not clearly and beyond a
doubt entitled to be admitted, the alien shall be detained for a
(removal) proceeding under section 240.'' \13\ That is the standard
that should be applied to all arriving aliens.
---------------------------------------------------------------------------
\12\ INA Section 235(b)(1), 8 U.S.C. Section 1225(b)(1).
\13\ INA Section 235(b)(2)(A), 8 U.S.C. Section 1225(b)(2)(A).
---------------------------------------------------------------------------
Finally, just as the credible fear standard may originally have had
some utility, but has lost value as alien smugglers game the system and
spread the stories that ``work'' in demonstrating credible fear, so the
asylum statute itself, INA Section 208, while a useful addition to our
immigration law when added in 1980, may have lost some value as the
stories have been spread that ``work'' in convincing an adjudicator to
grant asylum.
How did the U.S. meet its obligations under the Convention and
Protocol on the Status of Refugees before 1980? The answer is through
withholding of deportation, now withholding of removal, Section
241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. Section
1231(b)(3). That statute prevents the removal of an alien to any
country if, ``the alien's life or freedom would be threatened in that
country because of the alien's race, religion, nationality, membership
in a particular social group, or political opinion.''
I would like to see Congress consider enhancing Section 241(b)(3)
by adding to it some of the benefits of asylum, like adjustment of
status to legal permanent resident, and following to join of spouses
and minor children, under certain specified conditions, with the goal
of replacing the asylum statute with a single enhanced withholding of
removal statute for the protection of refugees. That statute has and
will have a higher burden of proof than the asylum statute \14\, and
should therefore be less susceptible to fraud.
---------------------------------------------------------------------------
\14\ See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).
---------------------------------------------------------------------------
That concludes my testimony, and I again thank the committee for
the opportunity to testify.
__________
Mr. Gowdy. Thank you, Mr. Ting.
Mr. Acosta?
TESTIMONY OF HIPOLITO M. ACOSTA, FORMER DISTRICT DIRECTOR, U.S.
CITIZENSHIP & IMMIGRATION SERVICES (HOUSTON) AND U.S.
IMMIGRATION & NATURALIZATION SERVICE (MEXICO CITY)
Mr. Acosta. Thank you, Mr. Chairman and Members of the
Committee, and thank you for allowing me to testify on the
subject of asylum fraud before you today.
Several months ago, I spoke to a national of a Central
American country in his early 30's who had been deported 3
years earlier after having resided in the United States for
over 8 years. During the period he was here, he established a
very successful business enterprise and immediately, upon
arriving in his country, returned to the U.S. via Mexico using
the services of a human smuggler to get back to his business.
Sometime after his illegal reentry, he sought the services
of an immigration attorney to explore avenues to legalize his
status. For a substantial fee, one of the options presented and
recommended to him by the attorney was to file a credible fear
claim. This legal advice was given despite the fact that he was
already ineligible to file but the legal representative
intended to use our own deportation record to show that he had
been outside the country and would falsify the date of return.
Even more egregious was the recommendation that cigarette burn
marks could be placed on his body as evidence of torture in his
country when he had been forced to return.
Fortunately, in this instance, the alien did not pursue the
advice given. Instead, he sought other legal counsel and
reported the incident to appropriate authorities.
While it is unknown what the outcome of the fraudulent
claim finally would have been, this alien had an incentive to
submit a fraudulent asylum claim to obtain legal status in the
United States, especially when encouraged by immigration
services providers who they consider experts and rely upon
their advice for legal representation.
With USCIS statistics indicating that 92 percent of the
credible fear claims were approved during fiscal year 2013, the
odds were certainly in his favor of receiving a favorable
ruling despite the fraud.
Ports of entry and some Border Patrol offices have reported
surges of individuals presenting credible fear claims,
including large numbers of Mexican citizens fleeing violence or
threats from vicious narcotics trafficking cartels operating
throughout that country. The violence occurring in Mexico and
in some Central American countries is indisputable. The
violence associated with the criminal organizations is real but
under our legal standards does not qualify individuals for
asylum. Yet, we have seen a staggering more than 500 percent
increase during the 5-year period of claims along our southern
border.
Our immigration history has shown that Mexican citizens and
Central American aliens have long sought to enter our country
in search of a better way of life and opportunities. This has
included those who have entered our country illegally or
individuals who overstayed their visas. With our enhanced
border security and better technology, illegal entry along our
southern border has become much more difficult, and the cost to
pay smugglers has in some cases reached up to $5,000 to be
smuggled to interior cities of the United States. Given the
possibility of being released into our communities until our
recent lenient detention policy, filing a claim has been a much
more attractive option than entering the United States
illegally.
Recent trends in the filing of asylum applications to abuse
immigration laws have occurred in the past, and I believe it
useful to learn from the previous abuse and mistakes over the
years. One of the largest surges along our southern border
occurred in the late 1990's when a catch and release policy for
Central Americans who claimed they were fleeing violence and
persecution in their native countries was instituted. A
memorandum detailing intelligence we had received indicating
that smuggling organizations were planning to flood the border
was not heeded. Within 2 weeks of my memorandum, hundreds of
aliens were entering the border city of Brownsville, Texas, a
large number of which would simply be guided across the river
and turn themselves in at the U.S. Border Patrol office in that
city. With an order to show cause and a hearing date not
determined, they simply continued their journey to their final
destination, in many cases to rejoin relatives already in the
country. When hearings were finally scheduled, the notices were
in many cases returned as undeliverable or, if received, they
simply failed to show up.
Ironically, 4 years after I retired and more than 21 years
after this surge, I was asked to provide testimony in a
deportation hearing of one of those individuals we had arrested
and released in 1988.
Smuggling organizations, whether from Latin American
countries or elsewhere, are quick to adjust to perceive
weaknesses in our enforcement actions. When I was serving as
the District Director of our office at the U.S. embassy in
Mexico City, a smuggling organization with ties in the United
States established a pipeline using the airport in Mexico City
as a transit point for Iraqi nationals destined for the United
States. Successful in getting small numbers to the border city
of Tijuana and ultimately into the U.S. where they were able to
file for asylum, it was not long before the numbers swelled to
over 200, all who claimed they were fleeing their country
because of religious persecution.
It is important to note that some of those in this group
had already been residing in different European countries but
desired to rejoin relatives already in the United States.
Ultimately, all those that were smuggled through Mexico
City were allowed to enter the United States. That I am aware,
no follow-up was ever conducted to determine what measures were
taken to identify all of those in that particular group.
Working with our counterparts in Mexico City resulted in
the arrest of one of the participants at the Mexico City
airport, and to my knowledge, this activity ceased.
How can we address this fraud? Through my long career, I
can state that I personally participated in the processing and
I can also attest to how serious and dedicated our adjudicating
officers are in trying to protect the national security of our
country and our communities. And at the same time, they must be
fair in adjudicating an application for benefit, many times
with very limited information. I applaud them for those efforts
and strongly believe we should provide them with all the
available tools necessary that have been identified through a
system in this important function for our country.
Thank you, Mr. Chairman, for allowing me this opportunity
to before you today.
[The prepared statement of Mr. Acosta follows:]
Prepared Statement of Hipolito M. Acosta, former District Director,
U.S. Citizenship & Immigration Services (Houston) and U.S. Immigration
& Naturalization Service (Mexico City)
Mr. Chairman and members of the Subcommittee, my name is Hipolito
M. Acosta. In March 2005, I retired as the District Director of the
U.S. Citizenship & Immigration Services (USCIS) Office in Houston,
Texas after serving in various positions throughout the United States
and two foreign countries during more than twenty-nine years of
service. Prior to reporting to my last assignment, I served as the
District Director of the U.S. Immigration & Naturalization Service
office at the U.S. Embassy in Mexico City, a jurisdiction that covered
Latin America and the Caribbean, including an INS office operating at
the U.S. Interest Section in Havana, Cuba. Thank you for this
opportunity to testify on our nation's asylum program.
Our nation has been a generous one in receiving immigrants from
throughout the world who have sought protection from well-founded fears
of persecution because of race, religion, nationality, membership in a
particular social group or political opinion. In my long career in this
field, I had the privilege of working on refugee and asylum matters as
a front line officer as well as senior manager under the U.S.
Immigration and Naturalization Service (INS). I bring to this hearing
the unique perspective of having processed and adjudicated applications
filed by Cubans during the Mariel Boatlift in 1980; Vietnamese
applicants in Vietnam and the Philippines; served as the INS Officer in
Charge of our processing team on the U.S. Naval Ship Comfort during the
Haitian exodus in 1994 and finally, processed applicants at the INS
office in Havana, Cuba in 1995. I will add that in addition to
personally conducting credible fear interviews, as a senior officer of
the agency I was tasked with reviewing all denial recommendations of
other processing officers and signing off on the denials, a
responsibility I took seriously as I knew very well the consequences
applicants might face if we denied claims in error. I share with you my
experience in the asylum field for a number of reasons, the most
important being that lessons learned throughout those years are still
valuable today as we see yet another surge in asylum applications,
especially along our Southwest border.
challenges and fraud in asylum processing
Adjudicating officers are tasked with an awesome responsibility
that will have a lasting impact on the lives of those seeking asylum in
our country. More importantly, they must take into account the security
implications for our nation and communities when making those
determinations. Oftentimes, those decisions are made with testimonial
presentations and limited documentary evidence to assist them. Even
when fraudulent documents are presented, that it itself is not
sufficient to deny a credible fear claim.
There are many pros and cons to consider and discuss when
addressing our asylum process and with limited time, I believe it
important to address an area that poses not only a challenge when
making these determinations but more importantly a factor that has
often led to abuse of our generous policy--a lenient detention policy.
In sum, my experience in this field and our history will show that a
policy that includes the possibility of being paroled upon making a
credible fear claim at our ports of entry or being granted relief while
already inside the country is a huge magnet for aliens who would
normally not qualify for other immigration benefits. This also provides
a golden opportunity for individuals or organizations who want to
profit from this activity, whether human smuggling or in assisting
applicants with false claims. Please allow me to share with you my
personal experiences that I believe will substantiate that position.
This is a recent example of one such case.
A Honduran national was arrested and deported from the United
States after residing in the country illegally for eight years. During
that period, he established an extremely successful business enterprise
and immediately upon arriving in his country, returned to the United
States via Mexico using the services of a human smuggler to continue
business operations. Two or three years after his illegal reentry, he
sought the services of an immigration attorney to explore avenues
available to legalize his status. For a huge fee and after having paid
a large retainer, one of the options presented and recommended to him
by the attorney was to file a credible fear claim. This despite the
fact he had already been in country for more than one year. Since there
was an actual deportation on file, the attorney offered that this
record would be used to substantiate that he had departed the country
and his illegal reentry date would be based on what period they wanted
to submit. Even more egregious was the recommendation by the attorney
that cigarette burn marks would be placed upon him to be used as
evidence of torture when he had been returned to Honduras and would
likely be subjected to more torture because of his social class.
Fortunately and despite the hefty retainer paid, he decided he wanted
no part of this scheme, sought legal counsel elsewhere and reported the
incident to authorities. While this is not the typical fraudulent type
of claim, there are undoubtedly many more that would try to game the
system.
Ports of entry along are Southern border and U.S. Border Patrol
offices have reported large surges of individuals presenting credible
fear claims, including large numbers by Mexican citizens fleeing
violence or threats from vicious narcotics and criminal cartels
operating throughout Mexico. It is undisputable that violence,
extortion, kidnappings and other criminal activity has reached alarming
levels in some Latin American countries but especially much more so in
Mexico, where the great majority of organized criminal activity is
controlled by the different Cartel groups. The criminal activity of the
cartels is not limited to the aforementioned crimes, as smuggled aliens
report that organizations involved in human smuggling are controlled by
the cartels, oftentimes in collusion with law enforcement authorities.
With our enhanced border security and the cartel choke holds, the
possibility of being allowed into the United States by making a
credible fear claim and subsequently being released is an attractive
magnet for citizens of Mexico and other Central American countries who
would normally not qualify for non-immigrant visas. Why take a chance
with an illegal border crossing when this option is available? This is
also an attractive option for cartel members who fall out of favor
within their own ranks, lose ground in some of the turf battles or
simply want to continue their illicit activities in the United States
but don't want to take the risk of apprehension by the U.S. Border
Patrol while attempting illegal entry. The fact that many might have
never been in the U.S. and would therefore not show up on any database
check presents a huge problem for our officers when trying to make a
determination on their claims. Our country has already experienced what
the outcome can be when a lax detention policy is in place. These are
important and expensive lessons that must not be allowed to repeat. I
can share this through my personal involvement in one such surge in
1988.
south texas--late eighties
Recent reports and statements have been made that aliens are
arriving at ``rates never seen before'' claiming a ``credible fear'' of
persecution while seeking to avoid being returned to their country of
origin. These reports refer to the large surges of foreign nationals,
largely from Central America and Mexico, claiming asylum at U.S. ports
of entry and across our borders. These reports are not entirely correct
as we have had larger numbers surge our borders using this same scheme
as occurred in the later eighties. What's important here is not the
numbers of then and now but the reason for these surges.
The answer is rather simple--the ability to make a claim, whether
genuine or not, that results in release and being able to continue
travel into the United States to rejoin family members and in most
cases, never report for any immigration hearings scheduled has been the
magnet for those seeking entry into the United States.
In late 1988, the Harlingen, Texas District Office, facing
budgetary restraints and limited detention space, instituted a policy
of releasing on recognizance aliens from Central America who claimed
they were fleeing violence and persecution in their homeland. Served
with an Order to Show Cause with a time and date of the hearing to be
set at a future date, the apprehended aliens were allowed into the
community with instructions that they could not leave the border area.
Not only did they not remain in the South Texas areas, the great, great
majority of those released continue their northward treks with the
assistance of smuggling organizations operating on both sides of the
border.
As the Supervisory Special Agent in Charge of the U.S. Border
Patrol Anti-Smuggling Unit in Brownsville, Texas I had received very
reliable information through our contacts in Mexico and Central America
that human smuggling organizations were recruiting heavily and planning
to flood the border. Armed with this information, I immediately
expressed my concerns through a memorandum I submitted through channels
to our then Regional Commissioner, asking that the practice and policy
be rescinded. My request was not heeded or addressed. As records will
indicate, my concerns became a reality and South Texas was flooded with
thousands of Central American aliens, many of whom would simply walk
across the river and guided to the local U.S. Border Patrol office to
turn themselves in for processing and release. On numerous occasions,
this number was over one thousand aliens encountered per day.
References have been made that South Texas was flooded as a result of
the 1986 Immigration Reform and Control Act and the amnesty provisions
but that is far from true. What attracted these large numbers was the
ability to evade detention and slip into the shadows in interior cities
of the United States with the documents provided by our immigration
authorities. Then and now, criminal organizations availed of our policy
to profit. Could criminals have been included in those surges and could
that happen today? Our experiences have already shown that smugglers,
criminals and those that would harm our country would gladly avail of
whatever method or scheme they can use to enter the United States. The
following is an example of how this opportunity was used during the
surges of 1988 and 1989.
Knowing they would not be detained, smuggling was brazenly and
completely done in the open. On one occasion, agents under my
supervision and I witnessed two busloads of Central American aliens
being off-loaded on the Mexican side of the river while being escorted
by law enforcement officials. Ultimately, we detained approximately 110
aliens who had been transported through Mexico and directly to the
river by human smugglers. We filed charges on 10 human smugglers, the
owner of a local low-end hotel and seized a number of taxi-cabs being
used by the smuggling operation.
Aliens and human smugglers from Latin American countries are not
the only ones attracted by our generous detention policies when
pursuing credible fear claims. In mid-2000, a small number of Iraqi
nationals made their way through Mexico to the border city of Tijuana
using the services of a Detroit based smuggling organization. Corrupt
Mexican immigration officials at the airport in Mexico City facilitated
their entry into the country. Once on the border, the small number of
arrivals commenced making credible fear claims and soon word spread.
Within a short period of time, over two hundred had arrived in Mexico.
When four smugglers in the group were arrested by Mexican authorities,
extensive media attention was given to the plight of the Iraqi
nationals who all claimed had fled their homeland seeking refuge from
persecution because of their Christian religion. Some of those
encountered had actually been out of Iraq for several years. Also not
known to the public was the fact that Mexican immigration authorities
had arrested a large number trying to transit the Mexico City airport
and had arrested at least one of their own immigration officers with
information we had provided them. Our agency made a determination that
we would not oppose the Mexican government releasing the large number
of Iraqis they had held in custody with the understanding that those
released would have to depart Mexico within a ten day period. Those
released did in fact leave Mexico City--proceeding directly to Tijuana
where they ultimately would apply for admission based on their claims
of a well-founded fear of persecution.
Of particular note is the fact that many of these claimants had
been in different countries prior to using Mexico as a jumping point. I
would not dispute the fear of religious persecution by the Iraqi
applicants but the risk to our country--this is pre-9/11--was that in
some cases there was no way to verify the true identities or
backgrounds of all those in this large group. Of equal importance is
determining if any type of follow-up was ever done on those that were
allowed into the country and granted status.
Reaching our borders or getting inside the country has generally
proven to enhance the possibility of being allowed to remain when
claiming credible fear, regardless of whether the persecution exists or
not. Not being able to reach our shores however, is a different story.
An excellent example is that of the Haitian nationals and Cubans.
Not unlike the Mexican situation of today, Haitians have long had
issues with ensuring protection of its citizens. The random acts of
violence are well known as are the disparity in social classes. In
1994, I served as the Officer-in-Charge of the INS processing team
onboard the U.S. Naval Ship Comfort. The vessel was used as a
processing facility for thousands of who had fled Haiti but were
interdicted at sea by the U.S. Coast Guard. The approval rate for those
processed was in the low twenty percent, yet no one could dispute the
hardship and violence prevalent in Haiti but our officers were required
to adjudicate with the statue regulating well-founded fears of
persecution. Had the number of Haitians interdicted reached out shores
or borders, it is unlikely that we would have been able to process and
return them to the country as efficiently as we did. This factor
coupled with the high denial rate resulted in a complete slowdown of
the mass exodus.
detecting fraud or criminal backgrounds when documents are not
available cuban mariel boatlift program
During the early part of 1980, close to 125,000 Cubans arrived on
our shores in what became known as the Cuban Mariel Boatlift. When
interviewed at the various processing sites established throughout the
United States, all sought to establish they were fleeing their homeland
because of persecution or a well-founded fear of persecution because of
race, religion, nationality, membership in a particular social group,
or political opinion.
Assigned to our U.S. Immigration and Naturalization processing team
in Ft. McCoy, Wisconsin, I had an opportunity to interview and process
several hundred applicants and their families. I have no doubt that
many did indeed suffer persecution as a result of their opposition to
an oppressive regime or other factors that would qualify them as asylum
applicants. It is also true however, that many simply wanted to join
relatives already in the United States and in fact, the Cuban
government used this opportunity to empty their prisons and place
hardened criminals on the vessels departing Cuba. Smugglers in South
Florida seized on the open invitation to enrich themselves by offering
their services to relatives in the United Sates willing to pay to have
their relatives smuggled.
During interviews of applicants and their families, INS
interviewing officers could easily determine the applicants had been
coached prior to their interview. Their stories were consistently the
same and in fact, we determined that when applicants were notified that
they had been approved and sent to the waiting area, through sign
language known to many of those who had been imprisoned in Cuba, would
communicate what presentations or claims were being accepted to those
still waiting to be interviewed. Through sources we developed inside
the housing area, a second INS officer and I were able to learn the
sign language used and would often surprise applicants with what story
they were going to present as they commenced their credible fear claim
interviews. Once confronted with this information, they readily
admitted to the coaching.
Of particular concern was the large number of applicants who had
spent years in Cuban prisons but not for political activity or
oppression as many claimed. They had been sent to prison for criminal
activity that included theft, rape, robberies, murder, etc. These
applicants too were coached on how to claim asylum. Fortunately, we
developed sources who provided information on a great number of these
criminals and through interviews, were able to establish that they were
a danger to our communities were they to be released.
Laureano Buffuartue was one of these asylum applicants. Detained in
Cuba at the age of twelve for theft, he did not see freedom again until
placed on one of the vessels destined for the United States. With
information provided by confidential sources, I interviewed Mr.
Buffuartue who readily admitted to killing three men during his prison
time. Had this information not been developed, there is likelihood that
through appropriate coaching, Mr. Buffuartue would have made a
fraudulent claim and if approved, would have ended in one of our
communities. Like Mr. Buffuartue, there were hundreds of other asylum
seekers who were detained but many more that number who ultimately were
released.
The discovery of Mr. Buffuartue occurred in 1980 but I am sure this
could happen today with the influx of asylum seekers at our Ports of
Entry or those detained along our border who make a claim to credible
fear. These could include criminals for which no background check,
including FBI checks or those done through other data-bases would
disclose their identity or true background. This type of information
would only be revealed through the interview conducted by an officer
with the skills, knowledge and time to pursue this matter or from
information from foreign agencies.
The persecution claims presented by the Cubans in Mt. McCoy,
Wisconsin were not limited to asylum applicants already in the United
States. In 1996, I conducted refugee interviews at the U.S. Interest
Section in Havana, Cuba and found that many of the same stories were
presented to adjudicating officers. When additional documents were
requested, applicants had no problems in obtaining those documents
through the Cuban authorities. It was also not uncommon to discover
that the documents obtained in many cases contained fraudulent
information that would benefit an applicant in pursuing his credible
fear claim. During one interview with a family unit that consisted of
sixteen family members, I informed the principal applicant that he had
not met the criteria to establish a well-founded fear of persecution
based on his testimony and documentation. He and his immediate family
however, qualified for parole into the United States based on an
immigrant visa petition filed by relatives in the country already. He
and the family members refused the offer of parole and chose to stay in
Cuba because they would not qualify for benefits granted to refugee
entrants and would have to pay for their transportation. Had they
really feared persecution, there is no doubt they would have fled at
this opportunity.
conclusion and recommendations
The examples of fraudulent claims in the asylum process I mention
in my presentation are just a few of many that have occurred throughout
the years. Studies conducted have shown the vulnerabilities in the
process and what is necessary in combating this fraud. I urge that some
of the measures I mention here are continued or expanded to assist
USCIS in making the asylum determinations:
The close and continued cooperation between USCIS, ICE and DOJ is
crucial in pursuing prosecution of immigration service providers
involved in massive fraud and misrepresentation such as in the example
earlier in this document of an attorney suggesting that a client
consider having burn marks placed on his body as evidence of torture.
Prosecution is crucial not only of the immigration service providers
but the applicants themselves who conspired and assisted with the
Service providers in submitting their fraudulent claims to obtain
benefits. Action against the applicants should include detention and
deportation as a result of filing fraudulent applications.
Extensive data-base checks must continue and as in previous case
studies indicate, must be completed before a benefit is granted.
Overseas verification of documents is crucial when fraud indicators
are present and can best be addressed through a timely response from
overseas offices. These requests must be given high priority by the
receiving office and if a response is not received within a mandated
time period, call-up measures must be implemented.
Finally, extensive studies should be conducted on a yearly basis to
analyze and identify fraud patterns and practices. This information is
vital for adjudicators in making their determinations and in
identifying vulnerabilities in the program.
__________
Mr. Gowdy. Thank you, Mr. Acosta.
Ms. Acer?
TESTIMONY OF ELEANOR ACER, DIRECTOR, REFUGEE PROTECTION
PROGRAM, HUMAN RIGHTS FIRST
Ms. Acer. Thank you very much. Chairman Gowdy, Ranking
Member Lofgren, and Members of the Subcommittee, it is an honor
to be here today to offer our views about U.S. asylum policy.
My name is Eleanor Acer and I direct the Refugee Protection
Program at Human Rights First. Human Rights First is an
independent advocacy organization that challenges America to
live up to its ideals and assert its leadership on human
rights. In our work, we develop partnerships with retired
military leaders, former law enforcement officials, faith
leaders, tech companies, and others to drive home the point
that human rights are universal ideals and American values.
With offices in New York, Washington, D.C., and soon in
Houston, Texas, we oversee one of the largest pro bono refugee
representation programs in the country, working in partnership
with volunteer lawyers at some of the Nation's leading law
firms.
Providing refuge for the persecuted is a core American
value reflecting this country's deep commitment to liberty and
human dignity, as well as its pledge under the post-World War
II Refugee Conventions Protocol.
At Human Rights First, we see every day the ways in which
people are protected through the U.S. asylum system. They are
victims of religious persecution, women targeted for honor
killings, trafficking, and horrific domestic violence, people
targeted because of their ethnicity or sexual identity, and
human rights advocates who stand up against oppression. You
know these stories, Mr. Chairman, because as Americans we are
defined by our global stance against injustice and a fair
system for equal opportunity.
A strong asylum and immigration system that adjudicates
cases in a fair and timely manner and includes effective tools
for fighting abuse is essential to the integrity of the U.S.
asylum process and to protect those fleeing persecution. When
individuals or groups defraud the system, it hurts everyone,
and steps should be taken to counter those abuses and punish
the perpetrators.
U.S. authorities have a range of tools to address these
abuses. Many of the existing tools are outlined in my written
testimony, including multiple identity and background checks,
personnel in multiple agencies charged with detecting and
investigating fraud, and the ability to refer for prosecution
those who perpetrate fraud. That is particularly important
because it sends a message that fraud will not be tolerated.
But you asked today if these safeguards are in place, what
else can be done to strengthen the asylum system. And with the
increase in credible fear claims on the border, are there
additional steps that should be taken to safeguard the system?
There are ways to handle these challenges that will reflect
American values and strengthen the asylum system.
First, as I mentioned, the immigration agencies should
utilize and increase as necessary anti-fraud tools and
prosecutions should be continued and stepped up.
Another critical step also deserves attention. USCIS and
EOIR should be properly staffed and resourced to adjudicate
cases in a fair and timely manner and to eliminate backlogs
that can be a magnet for abuse. Delays both increase the
vulnerability of our immigration system to abuse and prevent
refugees from having their cases adjudicated in a timely
manner, often leaving refugee families stranded in difficult
and dangerous situations abroad.
Asylum office and immigration court staffing should be
increased to ensure timely and personal credible fear
interviews, timely referrals of affirmative asylum claims that
are not granted in the immigration courts, and the elimination
of prolonged delays and substantial backlogs in the immigration
courts.
As we seek to strengthen the system, we should also address
the many ways in which refugees often find themselves lingering
for months in jails and jail-like detention centers or denied
or delayed in receiving protection. Unjust and unnecessary
barriers that deny or delay protection to refugees, like the
filing deadline bar to asylums, should be eliminated.
In addition, the recommendations of the bipartisan U.S.
Commission on International Religious Freedom relating to
expedited removal and detention should be implemented,
including its recommendations on parole for eligible asylum
seekers and the expansion of legal orientation presentations.
Congress should support the increased use of alternatives
to detention as well, as detailed in my testimony.
While steps can and should be taken to strengthen the
asylum system, it is absolutely essential that any changes in
the law be very thoroughly thought out so that they do not
further risk returning refugees to persecution or further
prolonging detention in cases where it is unnecessary.
Thirty years ago, President Ronald Reagan signed into law
the Refugee Act of 1980, which passed Congress with bipartisan
support enshrining into domestic law America's historic
commitment to protect the persecuted. Yesterday, as was noted
earlier, 10 leading Republicans issued a statement in support
of this country's commitment to protect the persecuted, stating
that, quote, our policies toward refugees are at the heart of
our American values. These individuals included former
Secretary of Commerce Carlos Gutierrez, Governor Tom Ridge,
Senator Mel Martinez, Dr. Paula Dobriansky, Governor Sam
Brownback, Governor Jeb Bush, Grover Norquist, Jim Ziglar,
Alberto Mora, and Suhail A. Khan. Mr. Chairman, we appreciate
your entering that document into the record today.
America should not abandoned its compassion but should
stand firm as a beacon of hope that will not turn its back on
those seeking protection from persecution.
Thank you very much for the opportunity to share these
views with you today.
[The prepared statement of Ms. Acer follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Gowdy. Thank you, Ms. Acer.
Before I recognize the Chairman, I would ask unanimous
consent to add to the record the article referenced by Mr. Ting
entitled The Asylum Seeker from The New Yorker. I hear no
objection.***
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***See Appendix for this submission.
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I would now recognize the gentleman from Virginia, the
Chairman of the full Committee, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Crocetti, in your testimony you mentioned that once the
public became aware of these fraud reports, there was pressure
to release them broadly, and thereafter, the contents of the
reports became politicized. What did you mean by that? And
explain how the content might have changed once there was
pressure to release them broadly.
And in that same regard, once the content of the fraud
report became public, did USCIS interfere in the workings of
the Fraud Detection and National Security Directorate, the
FDNS, and what do you think would be the best way to ensure
that the FDNS is able to continue its work unhindered?
Mr. Crocetti. Thank you, Chairman.
It is important to understand that back in 2004-2005, when
we developed this benefit fraud assessment tool, we had no
data. So our immediate need was developing an internal tool in
which to focus our procedures and guidance to the fraud
officers that were just being hired and trained and placed out
into the field. There was no intention or plan to use it as a
public document to release externally.
Taking that approach actually was very helpful because we
were able to actually complete four benefit fraud assessments,
and the one in particular, the religious worker assessment, in
which we found a 33 percent fraud rate, resulted in the
development of regulations that have since made significant
improvements in that program and considerably reduced double-
digit fraud rates to single-digit. That was the objective of
the benefit fraud assessment.
As the information became more public--it started with the
H1B, of course, given the interests of the H1B visas, et
cetera--we realized corporately as an agency that we had to
make modifications to the methodology and the approach because
all of the information was going to be disclosed publicly. So I
was instructed that the assessments would no longer contain a
recommendation with regard to recommended improvements because
there was an internal concern that there would be a knee-jerk
reaction that could perhaps be too extreme. And the data that
we were using certainly had some methodology issues, and I can
explain that.
One of the things in our immigration world--it is just like
trying to find any files. Over the years, you have seen a
number of reports. Getting legacy data from legacy mainframe
systems and then trying to locate files and getting those files
and obtaining everything----
Mr. Goodlatte. Mr. Crocetti, let me interrupt since I have
a very limited amount of time.
Mr. Crocetti. Okay.
Mr. Goodlatte. I will give you one more question here. In
your testimony you state that in order to ensure the integrity
of any benefit or entitlement program, the ability to detect,
confront, deter, and prevent fraud--we need that. To do this
effectively, we must be both proactive and reactive, proactive
in the sense of performing fraud and risk assessments,
compliance and quality assurance reviews, and other studies and
analyses, and reactive as in conducting investigations with
regard to individually suspected fraud cases.
In your opinion, is USCIS proactively preventing fraud
today?
Mr. Crocetti. Yes, but I believe the agency is too
reactive. I do not believe the agency is as proactive as it
could be, which is evinced by the fact that we have not had any
benefit fraud assessments done in the past several years.
Mr. Goodlatte. Thank you.
Mr. Crocetti. And I think our reactive nature of just
identifying fraud leads and investigating them is exactly why
legacy INS failed. And we have to be more proactive and have
the internal controls, studies, and analyses to make sure we
have real-time data.
Mr. Goodlatte. Got it.
Mr. Ting, pursuant to the Immigration and Nationality Act,
arriving aliens are subject to mandatory detention whether they
are found to have credible fear or not until it is determined
whether they have legitimate asylum claims. This crucial
requirement is designed to prevent aliens from being released
into our communities and becoming fugitives. The detention
standard was enacted for the very reason that large numbers of
arriving aliens absconded after claiming asylum and being
released.
Under the statute and corresponding regulations, under
limited circumstances, parole from detention is available to
meet a medical emergency or, if it is necessary, to meet a
legitimate law enforcement objective. However, these standards
have been watered down by the current Administration via
executive fiat.
Why do you think that out of 14,525 aliens claiming
credible fear in 2012, only 884, 6 percent, remain in
detention? What does this high release rate say about ICE's
parole policy and the surge in credible fear applicants?
Mr. Ting. Yes. I think the Administration is misusing the
credible fear test to admit large numbers of people at our
border who should not be admitted. And I agree that there is a
conflict, I think, in the statute, frankly, between the
mandatory detention provision and the provision that says we
are going to use the credible fear standard to provide a kind
of screening at the border. So I think there is a
contradiction, and I think the Committee should think about
clarifying that.
I have proposed taking the credible fear standard entirely
out of the statute--I do not think that is what the credible
fear test was invented for--and preventing that conflict from
arising, leave the mandatory detention in, but take the
credible fear test out, which is obviously being used to admit
people who ought not be admitted to the United States.
I was just talking to some old INS people here and we were
saying that in the old days when people came to the border and
said we want asylum in the United States, we would say, fine,
come back in 2 weeks or whenever and we will have someone at
the border. You can do the interview at the border, but we are
not going to let you in pending that hearing. And this credible
fear standard has given the Administration a way to say we are
going to let you in now and you can come back later on for a
substantive hearing if you want.
Mr. Goodlatte. Thank you.
Thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentleman from Virginia.
The Chair will now recognize the Ranking Member of the full
Committee, the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you so much, sir.
First of all, I would like to welcome Eleanor Acer from
Human Rights First. They have been before us before and the
work that your organization does is phenomenal. And I am very
glad that you are the Director of the Refugee Program.
Now, one of the witnesses, Mr. Ting, recommends eliminating
asylum protection and instead enhancing what is now known as
withholding of removal. This got my attention right away, and I
wanted to evaluate your feelings about such a proposal.
Ms. Acer. Thank you, Congressman, for that question, and
thank you for your kind comments. I appreciate them.
That issue was resolved long ago, and it definitely would
not be a good idea now. The United States should not be denying
its protection to refugees with well-founded fears of
persecution. That is not who we are and it does not send a very
good signal to the rest of the world.
The higher withholding standard basically is too high. I
mean, what would we have? People leaving Syria and fleeing for
persecution and we are going to say, okay, is it a 55 percent
chance likely that you are going to be returned to persecution?
That is not an appropriate standard. We should not make people
take those kinds of risks with their lives. It is just
unworkable really.
The well-founded fear is the standard that is in the
Refugee Convention, that our Supreme Court--and that we have
been applying for many years. There is no reason to dial back
the clock. There are many other methods of dealing with
whatever concerns there are that need to get addressed in the
system.
Thank you.
Mr. Conyers. Thank you very much.
I wanted to talk about access to counsel, whether we are
going to save money or be more efficient. Are there any cases
that Human Rights First has worked on where a case outcome
might have been different or where less strain may have been
put on the immigration system had a client been represented
earlier in the process?
Ms. Acer. You know, we actually see many cases of
individuals who go through the asylum office who are
unrepresented. We interview cases very thoroughly before we
take them on, and we see people all the time who have been
referred from the asylum office, but yet, they have got
credible cases that meet the standards. And then we are able to
recruit pro bono lawyers to take those cases on, to gather the
extensive documentary and other evidence that is often
submitted in cases, to gather supporting evidence where it is
available and where it is reasonable to expect it. And that
really makes a difference for people. Counsel makes an
incredible difference. We see day in and day out how much it
does. And so many people go through the system unrepresented. I
think it is around 50 percent, and for those in immigration
detention, around 80 percent are unrepresented.
Mr. Conyers. Is it reasonable that we should shoot for a
goal that would allow people to have lawyers in case they
cannot afford them?
Ms. Acer. Yes, I think it is a real problem because
technically we do allow people to have lawyers, but people are
often in very remote detention centers. There are no legal
services available there. There may be very limited nonprofit.
You may find a local Catholic Charities office an hour away
struggling to reach this facility. So it is incredibly
important for people to be represented through our system. It
is a very complicated system, issues of whether families stay
together and, in asylum cases, whether or not someone is
returned back to persecution. These are critical issues and
people are navigating a very complicated system all by
themselves.
I know people think that somehow it is sort of really,
really easy to get asylum. We have pro bono lawyers who work
with us who work at major law firms, and they cannot believe
how complicated these cases are often and they are often
shocked at how difficult the process is.
Mr. Conyers. Thank you very much.
We are trying to figure out--and I am going to ask this
question of the former chief of the Fraud Detection Office, Mr.
Crocetti. We are trying to improve the ability to detect and
fight fraud. Have you noticed changes over the years? Do you
see any improvement going on?
Mr. Crocetti. Yes. I mean, when compared to pre-9/11 under
legacy INS, absolutely. There have been unprecedented
improvements and more proactive efforts, i.e., the benefit
fraud assessments, administrative site visits.
However, I am concerned that over the past couple or so
years, things have not progressed and they are not as
proactive. And I am very concerned about that. I am very
passionate about it obviously. I just cannot let go of it. But
we need to be much more proactive in the area of benefit fraud
assessments and compliance reviews to know where the fraud is
and not wait until we are reacting and investigating cases. The
volume is overwhelming. As it is now, they cannot handle it.
Mr. Conyers. Well, I thank you.
My time is up, so I yield back.
Mr. Gowdy. I thank the gentleman from Michigan.
I am going to swap places with the gentleman from Utah and
go last, and I would now recognize the gentleman from Utah, Mr.
Chaffetz.
Mr. Chaffetz. I thank the Chairman.
It has been established here in the testimony affirmative
asylum claims have doubled--doubled--in the last 5 years to
more than 80,000. Mr. Ting, you talked about perhaps some of
the ways to resolve this, but what do you think the root cause
of this is? Why do we see such a growth in this area?
Mr. Ting. Well, I think the explanation is going to be
complicated. I think it boils down to communications and
transportation, that we live in a communications age. It is
much easier for people all around the world to understand the
possibilities that are out there for them, and it is easier for
them to get to the United States, one way or another, to take
advantage of those possibilities.
One of my former colleagues in the economics department at
Temple used to say the poor people of the world may be poor but
they are not stupid. They are as capable of doing cost-benefit
analysis to determine what is in their own self-interest as
anyone in this room, he used to say. And they do it all the
time, and we understand that. They use cost-benefit analysis to
decide what they are going to do, and if the costs are low and
the benefits are high, it makes sense to do something. And if
you do not want them to do that, you have to raise the costs
and lower the benefits. It is simple economics.
Mr. Chaffetz. Mr. Chairman, I would like to enter into the
record--I ask unanimous consent--an article that was in The
Wall Street Journal dated January 29. It is titled ``Flow of
Unaccompanied Minors Tests U.S. Immigration Agencies.'' It is
basically referring to the U.S. Conference of Catholic Bishops
that had forecasted 60,000 unaccompanied minors from Central
America to cross the southwest border this year alone. That is
up from about 5,800 roughly a decade ago.
The surge that we are seeing of unaccompanied minors, which
creates a whole host of problems and challenges, 60,000 of
them--do you see a root cause for that? Let us start with
actually Mr. Crocetti here.
Mr. Crocetti. I am not familiar with that issue.
Mr. Chaffetz. Mr. Ting, do you have any theories or insight
or----
Mr. Ting. Well, I think it is dramatic. It is still
literally child's play to get across the border. Right? I mean,
unaccompanied minors are getting across the border. That is how
open the border is.
But I think the same phenomenon is at work. We live in the
Internet age. Everyone understands everything that is going on
everywhere. People understand possibilities that they may not
have been aware of before. They know how to----
Mr. Chaffetz. Thank you.
Mr. Acosta, can you speak to this point--on the two points
here?
Mr. Acosta. I can. As the Director in Mexico City, I
actually led large-scale investigations where it was
substantiated that unaccompanied minors were being smuggled by
organized organizations operated from Central America, Mexico,
and all the way into the United States.
If you look at some of the statistics I believe from July
of 2012 to May of last year, there were more than 23,000
unaccompanied minors that were taken into custody. That does
not count the ones that were able to reach the interior cities
of the United States. That is a substantial number. There is a
large amount of business for the cartels, the human smuggling
operations that are operating in Latin America, and this is a
very attractive business because the cost for each child coming
into the United States in some cases was $5,000 to $7,500 per
child.
Mr. Chaffetz. Expand on that, the cartels, and what you see
them doing with human and drug smuggling.
Mr. Acosta. Much more so now, Congressman, the human
cartels are very organized throughout Mexico and certainly
through Central America. They are very specific in what they
do. They are good at what they are doing. And while we
mentioned that 23,000 were taken into custody, it is not to say
that they did not obtain a benefit in being detained along our
borders because, for the most part, a large number of those
unaccompanied minors were ultimately released to their parents
who were residing in the United States.
Mr. Chaffetz. And again, along with this, how is it that
our public policy--is it facilitating this? Is it encouraging
this? Is it deterring them? What is it doing?
Mr. Acosta. We have always had a large amount of children
coming to the United States. With the large undocumented
population that we have in the country, it is going to
continue. Certainly with our detention policy, with our release
policy, it is a great encouragement for families to be reunited
with their minor children.
Mr. Chaffetz. Yes, go ahead.
Ms. Acer. I am sorry. I was just going to add in one other
factor that we have not touched on, and obviously, it is not
necessarily something this Committee is focusing on, but that
is the violence that is driving many of these children to end
up coming here.
Mr. Chaffetz. Do you believe there is fraud?
Ms. Acer. I also would really urge----
Mr. Chaffetz. No, I am asking.
Ms. Acer. Of course, sir, there are incidents of fraud, and
my testimony has detailed many.
Mr. Chaffetz. You have 25 pages of testimony.
Ms. Acer. I am glad you read them, sir.
Mr. Chaffetz. But it does not talk about fraud. That is the
whole heart of this hearing. How do we prevent this? How do we
fight against it?
I am in favor of the person who is legally, lawfully trying
to go through this process, but the worry is you got so many
people taking advantage of the system because--I mean, look at
the numbers. It is just astronomical growth.
Ms. Acer. Thank you, Mr. Congressman. I actually did detail
in there many, many safeguards that exist in the system. And I
really want to stress the importance of making sure----
Mr. Chaffetz. You did not talk about the detection of
fraud.
Ms. Acer [continuing]. The courts and asylum officer are
actually well staffed enough to actually conduct their
interviews and to eliminate that backlog, which I am
concerned----
Mr. Chaffetz. I thank the Chairman. Appreciate it.
Mr. Gowdy. I thank the gentleman from Utah.
The Chair would now recognize the gentlelady from Texas,
Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank the Chairman for his courtesy
and the Ranking Member for her courtesy as well and thank all
the witnesses, some of whom I have had the pleasure of working
with.
Mr. Acosta, thank you for your service. Since we have
engaged with each other over a number years when you served in
your capacity in the Federal Government and I believe we have
had these discussions, do you think a passing of a
comprehensive immigration reform, delineating any number of
methods of entry which then would separate, in essence, the bad
guys from the good guys would be helpful in law enforcement?
Mr. Acosta. If I understand the question correctly, ma'am,
it is would passing a comprehensive immigration reform help.
Ms. Jackson Lee. Yes, in delineating the good guys from the
bad guys.
Mr. Acosta. Well, I do not believe that comprehensive
immigration reform would serve that particular purpose. I think
that we need to institute the measures that we have that we are
talking about today with the security checks of anybody that
appears at our borders that is already inside the country.
Ms. Jackson Lee. So you do not think the passage of
immigration reform that gives new permission to work would be
helpful to law enforcement at the border?
Mr. Acosta. Well, I think that any method that we can
identify who is inside the country is certainly beneficial to
our country. But I think I would separate----
Ms. Jackson Lee. So you say that certain aspects of it
might be beneficial.
Mr. Acosta. Well, I think that in identifying individuals
in our country, but I think that is something that we should be
doing anyway with law enforcement authorities working,
especially when people game the system to get into our country.
Ms. Jackson Lee. Well, you have the laws to deal with that,
but you do not have the laws to ensure a fair process for
people who may want to enter the country for work or otherwise.
But thank you very much for your answer.
Let me just proceed with you, Ms. Acer, and let me thank
you. And I understand you may be coming to Houston, so I look
forward to knowing your location. I work extensively with a
number of leaders in the business community, the Partnership,
that is, the Chamber, the Greater Houston Partnership, solely
100 percent in support of comprehensive immigration reform. You
may be coming to a location that will be receptive to some of
your issues.
But let me just take note of the fact in as calm a voice as
I might do so, and I have a question for you. As I understand,
before I came into the chambers, there were persons expressing
their First Amendment rights, and obviously, through the
protocol of this Committee, were removed from the Committee.
But they were expressing their consternation, their
frustration, their hurt, and their pain.
One hundred fifty years ago when African Americans were
experiencing that kind of pain, they engaged in something
called Freedom Summer, and it was to emphasize to the Nation
that we are, in essence, deserving of a fair play and justice.
So as a Member of Congress, I am committed to abiding by
the laws, but I would expect that we will see thousands upon
thousands of individuals from all backgrounds coming to this
Congress in the summer and finally saying enough is enough, the
persons who may have been given asylum and others expressing
themselves for someone to listen.
We can sit here in this Committee and talk about violations
of the asylum law passed by Senator Kennedy in 1980. It started
out with 50,000 asylum seeker provisions. Now I think we are up
to 75,000. That is now some 24 years--more than 24 years--30-
some years later.
So all I can say to my colleagues on this Committee is be
prepared. Be prepared for those who are feeling the pain of
injustice.
And let me be very clear as I pose this question to you. As
I understand, asylum seekers come from potentially Syria, if
they are not involved in terrorist activities. They come from
some of the bloodshed and war-torn areas on the continent of
Africa. They may come from, in years past, places like Burma.
They come with the frustration of an onerous, murderous
condition seeking asylum. All of a sudden, we have got asylum
tuned only to the southern border, which baffles me because I
have been on this Committee for a long time and I know that
asylum seekers are children and parents coming from the worst
conditions around the world that Americans may not even
imagine.
So let me ask the question since I met with an immigration
judge before I came here. In the southern district, we may have
just two immigration judges. They are literally bent over for
the lack of resources, the lack of staff, and the overloading.
So I ask this question. What is the impact of the immigration
court backlog on asylum seeker cases? Are there cases at Human
Rights First that have been directly impacted by the backlog?
In your opinion, what needs to happen to address the backlogs
in our immigration courts? And I would appreciate your answer.
And I thank the Chairman for his charity on this answer. I
note that there are 350,000 cases on hold right now.
Mr. Gowdy. Despite the fact that the red light is on, you
may answer the question.
Ms. Jackson Lee. I thank the Chairman.
Ms. Acer. Thank you very much, Mr. Chairman.
Yes, the backlog in the immigration courts is having a
tremendous impact on our pro bono cases. First of all, it is
actually making it harder for us to recruit pro bono lawyers
because what lawyer is going to take on a case that might not
have a court date for 2 or 3 years?
Also, that kind of a wait time for an asylum seeker is just
not appropriate. It is not good for the integrity of the system
and it does not help individuals who need to have their cases
resolved, want to get on with their lives, and sometimes have
children who are left stranded in very difficult or dangerous
situations abroad. So I would definitely encourage anything
this Committee can do to deal with the immigration court
backlog and now also the asylum office backlog.
Mr. Gowdy. I thank the gentlelady from Texas.
The Chair will now recognize the gentleman from Texas,
former Judge Poe.
Mr. Poe. I thank the Chairman.
I do not know that the issue before us is whether there
should be asylum or not asylum. I think the issue before us is
the people who cheat to get in the United States. So I want to
zero in on that issue specifically.
I appreciate the fact that you are here, Mr. Acosta. Thank
you for your service especially in the Houston area. You did a
good job and you still have an excellent reputation for your
work.
It brings me to the point that many times the Members of
Congress who are not on the border States do not have a clue
what is taking place on the border. And having been to the
Texas-Mexico border and then Arizona-Mexican border, New Mexico
numerous times, it is a different area. It is a different
world, and only, it seems to me, people who work there daily
and the people who live there on both sides of the border
really see what is taking place on the border.
But specifically, the issue before us is those people who
lie to get into the United States, not bona fide asylum
seekers, not people coming here the right way, but want to lie
to get here.
And my understanding, Mr. Acosta--and I would like for you
to weigh in on this. The different drug cartels that operate,
Sinaloas, the Zetas, whoever, they get into a confrontation
south of the border, a shoot-out. Their members, I understand,
are told to go to the United States until things cool off, and
one of the ways, when they get in the United States, if they
are apprehended by your guys, which many of them are, they are
told to seek asylum and go through the process of an asylum
seeker to be safe in the United States from their territorial
rivals, drug cartels.
Now, I do not know if that is true or not. I have heard
that several times, but I would like for you and your expertise
to weigh in on that situation of criminal gangs, criminal
cartels, whatever using fraud asylum to stay in the United
States temporarily or permanently.
Mr. Acosta. Thank you, Congressman. It is a pleasure seeing
you and thank you for the kind comments.
Well, I think it goes without saying that we in Houston
recognize that we have a large presence of cartel members who
entered the country legally and illegally, and the violence has
not been limited to the south in Mexico. As you recall, about a
year ago, there was a shoot-out where a truck driver was shot
by cartel members who were pursuing a shipment of narcotics
that was destined north. Just 2 weeks ago, there was a young
lady from Honduras who had filed for asylum who was killed in
an open street in Houston, which received a tremendous amount
of publicity, and it turns other there is a possibility that
gang violence was partly behind that.
We know that cartel members--we know that criminals will
seek any avenue to enter the United States if we make it
accessible and it makes it easier to come to the United
States--one, want to flee perhaps turfs that they might have
lost in Mexico, secondly to perhaps continue their criminal
activities here in the United States. It is all too common and
very well known to our law enforcement authorities in Houston
and throughout the State of Texas. So I think that the
statements that are made that cartel members are coming into
our communities is very true, whether it is legal or not, and
nothing is to prevent them from filing fraudulent asylum
claims.
On a personal case, I know that I arrested a heroin
trafficker more than 30 years ago when I was an agent in
Chicago. Thirty years later, the two sons of that individual
were actually heading up the cartel operations of the Sinaloa
Cartel in Chicago, Illinois. So I think that exemplifies the
risk that we have in our community for any individual entering
the country, as you state, by lying, whether they are coming in
for asylum or seeking any other benefit. And I think we owe it
to the American people to be vigilant not only along our
borders but inside the cities in the United States.
Mr. Poe. Would you agree with me that when we have the
fraudulent claims--those really do damage to the bona fide
people that are seeking asylum from persecution all over the
world who are trying to get here? That hurts their cases
because you have the fraudulent, the cheats, that are trying to
use the same system. Would you agree or not?
Mr. Acosta. Congressman, over the years, this has been
proven that not only do they hurt other individuals seeking
asylum, but it jams the system. It backlogs the cases that we
adjudicate. It takes away from resources that we could be
adjudicating, cases that deserve to be granted. And, yes, they
do hurt the genuine cases that need to be approved or
adjudicated on a timely basis.
Mr. Poe. I thank the Chairman.
Mr. Gowdy. I thank the gentleman from Texas.
The Chair will now recognize the gentleman from Florida,
Mr. Garcia.
Mr. Garcia. Mr. Chairman, thank you very much. I want to
start by thanking the Chairman for his efforts and the
consideration he has shown the other side of the aisle.
It is still my sincere hope that we can get to
comprehensive immigration. However, it is disappointing that
instead of working to that end, we are here playing with
probably the least fortunate of all folks who come before our
immigration system.
I cannot help but question the Committee and Congress'
commitment to getting something done. It took a year for the
Republicans to come out with principles. Yet, 1 week later,
Speaker Boehner, the only one that can bring a bill to the
floor, back-peddled on immigration reform. Why?
We have 197 co-sponsors to H.R. 15. I know a lot of my
colleagues on the other side of the aisle would like to vote
for a bill to get this done and move forward. But, no.
My colleagues claim that they do not trust the President.
After 1.9 million deportations, how much more enforcement? No
President has spent more money on the border than the President
of the United States. We have the lowest border incursions in
over 40 years. There is an unprecedented manpower on the
border. In fact, when the Government shut down, places like El
Paso had 30,000 and 40,000 workers going home. We now have some
of the securest cities in America across the border from some
of the most insecure cities.
The time has come to get immigration reform. We should
focus on that. I know the Chairman is willing to do that, but
we have got to get the leadership on the other side to put this
on the floor and get a vote out.
Mr. Chairman, I will yield back the balance of my time. I
will yield back to my colleague.
Mr. Gowdy. The gentleman has yielded to the gentlelady from
California.
Ms. Lofgren. Thank you, Mr. Chairman.
We do not have as many Members as you do today, so I am
grateful to get a little bit of time just to make some
corrections here.
In Mr. Ting's testimony at page 4--it was referenced by our
colleague--there is an indication that there were 80,000
affirmative asylum applications made in fiscal year 2013. I
would like unanimous consent to put into the record a report
from the Congressional Research Service that actually indicates
there were only 44,000 affirmative asylum claims in that fiscal
year.
Now, this is an increase from the 25,000 in fiscal year
2009, but much lower than the 77,000 claims in fiscal year 1997
or the 63,000 claims in fiscal year 2001. So I think it is
important to see that these claims go up and down and they
often relate to what is going on in other parts of the world.
For example, right now, as has been mentioned, there is an
epidemic of violence in Mexico and also in Central America. And
so there has been an increase in claims from people who are
escaping from that violence.
Not only is the United States being impacted with asylum
claims, our neighbors to the south are being impacted. For
example, the increase in asylum applications lodged by Central
Americans to countries other than the United States have
increased, a 432 percent increase in the number of asylum
applications in Mexico, Panama, Nicaragua, Costa Rica, and
Belize. So there is an epidemic and we are experiencing it, but
our neighbors to the south actually are seeing an even greater
increase than we are.
Now, that does not obviate the need to be alert to
fraudulent claims. Nobody is arguing that we should not be
vigorous in aggressively protecting ourselves from fraudulent
claims, not the advocates for refugee services or asylees. In
fact, we know if there is fraud, it hurts legitimate
applicants. So there is not a disagreement on that score.
I would just note, Mr. Crocetti--and thank you for the
service that you provided for our country for so many years and
your continued interest in this. Many, as a matter of fact
most, of the recommendations discussed in the report have been
implemented in terms of the access to the databases and on and
on. I assume, as you said earlier, that implementation of these
recommendations have actually helped decrease fraud in the
system you had indicated earlier.
If I am hearing you correctly--and I am going to take this
to heart--the suggestion you are making is that we need a
systematic kind of assessment as we go forward. I am not sure
that that is not happening, but I think that that makes sense.
And I intend to pursue this with the Administration. It is
really a matter of if we are doing well, we want to make sure
that we continue to do well.
For example, the drug cartel members--they are not eligible
for asylum. I mean, they are barred under the act, but we want
to make sure that we find out who they are.
And with that, I thank the gentleman for yielding and I
yield back. I will wait for my own time.
Mr. Gowdy. I thank the gentlelady from California.
The Chair will now recognize the gentleman from Ohio, Mr.
Jordan.
Mr. Jordan. I yield my time to the Chairman.
Mr. Gowdy. I appreciate that, and I will hold my time until
the end and recognize the gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman. I appreciate this
hearing today and the witnesses.
A number of things come to mind to me. As I listen to the
discussion about 70 percent fraud--or likely fraud is the way I
would interpret that--and I think about my business world, if I
had 70 percent of any of the division or department or endeavor
I was involved in and it had been going on since maybe 2005--
and we lament that we do not have current data to work with--I
would first start with what can we do to put this all back
together. Can we do that quickly? If not, what would the world
look like if we did not have this program?
And I listened to Chairman Goodlatte speak about how the
United States provides asylum to a greater number than all the
other Nations in the world put together. So this is a great,
big bite out of the broader society that we are in.
But it does not seem to me that there is a high level of
anxiety about solving this problem. It seems that there are
people here politically that are willing to accept a
significantly high level of fraud without an urgency to fix it.
When I see the numbers of unaccompanied adults arriving here in
the United States, a number that I believe Mr. Acosta said has
gone to a multiple of seven times what it was--I listened to
Chris Crane, the President of the ICE Union on a public
statement the other day that he thought that they would
probably interdict around 50,000 unaccompanied minors in the
United States, and now I see this number of 60,000
unaccompanied minors.
This is something to me that I would ask the reason for
this. I would probably turn to Mr. Acosta on this. Can it be
rooted in the reauthorization of the unaccompanied alien minor
protections from 2008? Did you see a change in that in the
acceleration then as the unaccompanied minors got two bites at
the apple and all of the access to benefits?
Mr. Acosta. Well, I think we have seen a large increase for
a number of reasons. One is because over the years,
Congressman, we have had a high percentage of illegal entries
into our country. We went from early 2000 with estimates of 30
million illegal aliens in our country to over 12 million
illegal aliens in our country right now, many who come from
Central and South America, many who left their children behind.
When we talk about the change, we have seen a lot of the
efforts by the parents to continue reuniting the children.
I will add that 1 year ago we had a reduction of the
illegal entry of adults coming into our country, but the
numbers of unaccompanied minors entering the country illegally
continued to increase in the surges that we are talking about
right now.
Mr. King. And are most of them being brought in by coyotes?
Mr. Acosta. Well, with my experience when I was the
Director in Mexico City, we had large smuggling organizations
that were participating in this scheme. And I will share with
you that my belief from what I know, most of the human
smuggling operations are working jointly with the members of
the cartels in Mexico. It is well organized. And I can assure
you that if a large number of children are being sent to the
United States and smuggled into the United States, it is with
the knowledge of cartels or other human smuggling
organizations.
Mr. King. Are you aware of any of them being required to
bring illegal drugs on their back as a price to their entry
into the United States?
Mr. Acosta. I am not aware of any children. However, we
know the tactics that the cartels use. You might recall,
Congressman----
Mr. King. Thank you, Mr. Acosta.
Mr. Acosta [continuing]. Several years ago, 72 people were
executed in Mexico by cartel members.
Mr. King. Thank you. We know that those numbers have gone--
the deaths have all been in the thousands, and it is tragic
down there. And I appreciate your bringing that up.
I would just point to a Center for Immigration Studies
report by Jessica Vaughn, ``Deportation Numbers Unwrapped.''
And I would ask unanimous consent to enter it into the
record.****
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****See Appendix for this submission.
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Mr. Gowdy. Without objection.
Mr. King. Thank you, Mr. Chairman.
And I would point out too this. Within the context of this
discussion, we have heard repeatedly that the deportations
under the President are greater than they have ever been. And
this report is an objective report, and it is a summation that
goes clear back. It shows that the deportations right now--the
removals right now all together, and that in the definition of
deportations used in this report, are lower than they have been
since 1973. The highest deportations that we had may have taken
place in 1986 except under Bill Clinton in his last year in
2000, he actually set the record with a number over 1.8 million
deportations. So I make that point here into the record, and I
will introduce that report.
But I would turn to Mr. Ting and ask this question. If you
have a problem and you are trying to fix this problem and you
do not see that there is a solution coming--I appreciated your
comment about the cost-benefit analysis that people make no
matter what their particular economic status might be. And now
here from the United States' viewpoint, cost-benefit analysis--
it is not working so good for us, and we are having trouble
analyzing that. So I would ask you do you believe that if we
applied a bonding requirement to the people that are being
released into this country under the asylum application, if
that would help fix this problem and what your view might be on
that.
Mr. Ting. Well, it would certainly alter the cost-benefit
analysis. There would be one additional cost to worry about.
And I think, again, if we want less of anything, we have to
raise the costs and lower the benefits. That is just a basic
fact of economic life.
Mr. King. I thank you.
My time has expired and I yield back.
Mr. Gowdy. I thank the gentleman from Iowa.
The Chair will now recognize the gentleman from Idaho, Mr.
Labrador.
Mr. Labrador. Thank you, Mr. Chairman. I wonder if the
Chairman would yield to a question real quick. I am wondering.
I have heard a lot of comments about immigration reform during
this hearing today, and I know you and I were not here during
2008 to 2010. But I wonder if the Chairman recalls what
immigration reform was passed by the Democrats when they were
in charge of Congress and the people of America had received
promises from the President of the United States that they
would do comprehensive reform when they were in power.
Ms. Lofgren. Would the gentleman yield?
Mr. Labrador. No.
Mr. Gowdy. I would tell the gentleman from Idaho, as he
knows, I was a prosecutor during that time period doing my best
to get to heaven. So I cannot tell you what did or did not
happen during that Congress.
Mr. Labrador. All right. Thank you, Mr. Chairman.
Mr. Crocetti, we heard testimony last month that asylum
credible fear interviews are just 20 minutes long or less. Do
any of you believe--do you or anybody on the panel believe that
giving the asylum officers maybe 20 minutes is very difficult
to make a credible fear determination?
Mr. Crocetti. Yes, I do. I think it is very difficult to
make an accurate finding in less than 20 minutes or 30 minutes.
Mr. Labrador. So how would you suggest changing that?
Mr. Crocetti. Well, one of the things that is absolutely
essential to a decision maker, an adjudicator, is that as many
system checks as possible could be done to identify any and all
information to determine credibility and an individual's
identity. So you can collect the biometrics and you can do the
background checks, but the odds are there are not any records
on most of these people. So now you got to focus on the
consistency of the story and the credibility. Overseas
verification of information and facts--one of the things I
would do is build and expand the overseas capability of CIS to
verify events, facts, and information instead of rushing
judgment to making decisions in 10, 20, 15 minutes and
releasing people.
Mr. Labrador. Mr. Ting, do you have any comments about
that?
Mr. Ting. Well, I would build the State Department into
this process rather than building an entirely new
infrastructure for CIS overseas. There is an infrastructure
over there. It is called our Foreign Service. We have
knowledgeable people in every country who speak the language
and have studied the culture, and that is a resource that ought
to be drawn upon. It used to be drawn upon routinely in asylum
adjudications, and it ought to again. In fact, again, talk to
the career CIS people. I think there are a lot of career CIS
people who agree with that and who regret that the State
Department has been taken out of the process.
Mr. Labrador. Mr. Acosta, do you have any comments on that?
Mr. Acosta. Yes. Having actually served 13 years outside
the United States with INS, I know that our offices are as
responsive as possible. They are experts at this particular
process.
While I do not disagree completely with what Dr. Ting is
saying, I think we have the expertise but we need more
resources for CIS outside the country because that is the
business that we are in. I know that adjudicators take it very
seriously and I know they can respond. But as Mr. Crocetti
stated, we need timely responses. We cannot wait 90 days to
adjudicate a petition inside the United States. And in some
cases, as the report presented here today has shown, we did not
receive responses on, I believe, something like 27 of the
requests that were sent outside the United States. That is not
acceptable, Congressman.
Mr. Labrador. Ms. Acer?
Ms. Acer. Congressman, thank you.
Yes, I would add that I think one of the most important
things that can be done is to staff USCIS' asylum office so it
has enough officers to conduct credible fear interviews and to
devote as much time as needed in each individual case and that
those interviews should be conducted in person not by
videoconference. I think that is very important as well.
I also wanted to note--there was a question before about
bond. Many asylum seekers actually are only given an
opportunity for release with bond. And I spoke just the other
day to an ABA project working with people at the border, and
they stressed to me how few people are actually getting
released right now.
I would like to also add----
Mr. Labrador. If I can reclaim my time. Thank you.
Mr. Crocetti, you also mentioned in your testimony that
once the public became aware of these fraud reports, there was
pressure to release them broadly. Thereafter, the contents of
the reports became politicized. What did you mean by that? Can
you please explain how the content might have changed once
there was pressure to release them broadly?
Mr. Crocetti. Well, once FDNS lost most of the control of
the instrument, the benefit fraud assessment, after it went
through an internal review process. And senior management is
obviously very concerned about what a document (that is
speaking for the agency) is going to say publicly because it
has repercussions. So as a result of that, there were also the
internal politics with regard to getting the approval process.
It would take forever. I would refer to it--as I am sure most
of you have heard--paralysis by analysis. And we could no
longer get the reports done due to internal and external
politicalization.
And I would suggest, as in my statement, that Congress
mandate that these reports and analyses be done and that a
report be provided to Congress in an ongoing manner. Because if
you do not--and I have been through this for nearly 4 decades--
it changes with the Administration and the party, the majority
party, and it keeps jerking the agency back and forth. We
careerists would really like to have a mandate so we could
focus on that and get it to you with little political
interference.
Mr. Labrador. Thank you very much.
I yield back my time.
Mr. Gowdy. I thank the gentleman from Idaho.
And the Chair will now recognize the gentlelady from
California, Ms. Lofgren.
Ms. Lofgren. Well, thank you, Mr. Chairman.
I think sometimes extravagant things are printed in the
press and it is really a distortion of what is really going on.
And that does not mean that there are not things that we can do
to make this system work better. And I think there have been
some helpful discussions here.
I have long thought that the country conditions--really,
the State Department is in the best position to provide that
information, and they do so on a yearly basis but they do not
update it.
Having said that, sometimes there is open source
information. I mean, I remember many years ago when I was an
immigration lawyer and I had an asylum case, and here was the
case. It was a gentleman who was here, and he was Iranian. The
Shah fell to the radicals. But he was Jewish. And what they
were doing in Iran was they were machine-gunning the Jews. We
could not get any information out of Iran at the time, but
there was plenty of open source information. And we were able
to make the credible fear case. Obviously, the law has changed
since that time, especially the 1996 act that I participated
in.
I think it is important to note in terms of the report that
you have discussed, Mr. Crocetti, that the indicators of
possible fraud that have been referred to--specifically the
report says that the negative credibility finding does not
necessarily demonstrate that there would be fraud. I mean,
there can be a lot of reasons why you might have a credibility
issue. You may have a poor memory. You could have a translation
error.
The failsafe is that you are going to court and you are
going to have a vigorous process where we have, in most cases,
the asylee applicant is not represented, but the Government
sure is. And if you can make that claim, you have got some
failsafe there.
So I think that does not mean that this is a perfect
system, but I think that the concerns that were expressed by
Mr. Acosta about things that happened in 1980 and 1988 and
1994--certainly those were very much on the agenda of Congress
when we revisited these issues. In the 1996 act, I think we
have created some problems there in terms of the material
support issue, for example. We have not gone into that because
this is not a hearing about that. But as we know, for example,
if you take up arms in any case, you are barred.
And I remember talking to Secretary of State Colin Powell
because the Montagnards, the Mennonites who were Montagnards,
were barred from asylum. And, of course, Colin Powell, before
he was Secretary of State, was a soldier in Vietnam and he had
a tremendous attachment to the Montagnards and what they did
for American soldiers. They were barred under our asylum laws
because of their role on our side in the war. And while we
messed around trying to refine this issue, we finally just took
the Montagnards out of the mix. But to make that sensible it is
very important.
I would just like to also note that my friend, Mr.
Labrador, constantly says, well, when the Democrats were in
charge, we did not do immigration reform. Obviously,
immigration reform did not pass. But I would like to note that
in the 109th Congress, the Democratic controlled Senate passed
a bipartisan comprehensive reform bill, and the House, then
Republican controlled as now, refused to take it up and passed
an enforcement-only bill. In the 110th Congress, the Democrats
in the Senate tried to pass a bipartisan bill, but the
Republicans blocked it and it fell apart. And I chaired the
Immigration Committee on this side. We tried to do something
modest, which was to provide relief for the families of U.S.
soldiers. And I will never forget that appalling markup where
our efforts to help the husbands and wives of American soldiers
was defeated by the rhetoric. In the 111th Congress, that is
when we had our 25-member bipartisan group working to put
together a bipartisan bill, which we eventually did. But we did
pass the DREAM Act which the Senate was unable to pass.
So I remain hopeful that we will be able to work together
to refine this system, but even more, those of us here working
in good faith can put our heads together and come together with
an effort to reform the immigration laws.
And just a final issue, Mr. Chairman. As I had mentioned
privately, we do have an issue of unaccompanied minor children.
There is a surge. Those are not asylum cases. Those are
children who have been actually apprehended at our border. We
need to understand what is going on there. There is a
multinational effort underway that includes El Salvador,
Honduras, Guatemala, Mexico, and the United States to try and
come to grips with that. It is my hope that we again--I just
mentioned that I would love to have the Chairman participate--
that we can work in a multinational way to make sure that the
right thing is happening there and that children are not
exploited or injured.
With that, I yield back my time.
Mr. Gowdy. I thank the gentlelady from California.
The Chair will now recognize himself for questions.
Mr. Ting, there have been a number of studies referenced
today with various levels of fraud detected, some as high as 70
percent, some 30 percent. I am not smart enough to know what
the percentage of fraud is. I think I am smart enough to know
that nothing will sap the generosity of my fellow citizens
quicker than fraud and a perception that we are doing nothing
about it. So whether the number is 10 percent, they expect us
to do everything we can to eradicate that 10 percent.
So against that backdrop, I want to pursue two different
lines with you. Firstly, detect and deter. I think Mr. Crocetti
said the standard is a mere preponderance of the evidence,
which is the lowest legal standard by which you would prove any
claim in any court. That does not get any lower than slightly
tilting the scales of justice. Has there ever been any thought
to raising the standard of proof above mere preponderance of
evidence?
Mr. Ting. Well, I actually think preponderance of the
evidence is a pretty respectable test. The test for withholding
of removal is more likely than not. And as somebody has said,
you know, 51 percent does it.
Mr. Gowdy. It is not even 51 percent. It is 50.1 percent.
Mr. Ting. Yes, 50.1 percent does it. That is a
preponderance of the evidence. And that was the test when we
did not have 208, when we only had withholding of removal. That
was the test for withholding of removal.
And indeed, when 208 was adopted, the position of the
Service and the BIA was that the standard would be the same
under asylum. And they litigated that issue. It went all the
way to the Supreme Court in a case that I cited in my
presentation called Cardoza-Fonseca in 1987. The Supreme Court
in a split decision ruled that there was a standard even lower
than that that applies to asylum. And the example that was used
in the majority opinion was that if there is even a 10 percent
possibility of persecution, that that would be sufficient under
208. That would not be sufficient under withholding of removal,
but 10 percent as opposed to the 50.1 percent that you just
talked about for withholding of removal, that a 10 percent
possibility of persecution would be sufficient, legally
sufficient, for authorization of asylum.
So that is why I am saying maybe we ought to get back to
that. Maybe that 50.1 percent is not such a bad standard
compared to the 10 percent the Supreme Court has authorized in
Cardoza-Fonseca.
Mr. Gowdy. I would agree 50.1 is more than 10, but 50.1 is
the lowest standard above which any claim has to be proven in a
court in this country.
Mr. Crocetti also mentioned, because I made a note, that
these are credibility-intensive inquiries, that credibility is
sometimes the only thing that is going to be judged. And juries
struggle for weeks sometimes to determine whether or not a
witness is credible, and the judge always instructs the jury
you may believe part of what a witness says, you may believe
one thing a witness says, you are free to weigh and balance
that credibility however you want. And you look at the tools
that juries use: corroboration, physical evidence, bias. Bias
is incredibly important when you are determining credibility.
So what tools are used in this analysis to determine
whether or not somebody is telling the truth or not?
Mr. Ting. Of all the information, you have to determine
whether there is anything that raises a question, any red
flags, and as soon as you have one lead, if you will, you
continue to pursue that and see if you get others. And once you
challenge their credibility, as far as I am concerned, then you
lean toward an unfavorable decision. Now, in the case of asylum
with CIS, that is simply referring them to the immigration
judge. So there could be two different standards there being
applied.
Mr. Gowdy. Well, Chaffetz had a hearing on Oversight, and I
asked a witness--I cannot recall his name, but he was somebody
who works for the Government that is in enforcement--that the
fact that you lie on one part of your petition or application
should not be considered as any evidence of veracity or lack
thereof on another part, which I just find to be mind-boggling
that you can pick and choose which questions you are going to
answer truthfully and which ones you are not.
But leaving the detect and deter for a second, I want to
get to the punishment. What are the consequences for falsely
asserting an asylum claim?
Mr. Ting. Well, you are charged with fraud and
misrepresentation, and then you are removable.
Mr. Gowdy. Are those prosecuted with vigor?
Mr. Crocetti. Well, I would have to defer to ICE or the
Department.
Mr. Gowdy. But you have been around a long time. Despite
your youthful appearance, you have been around a long time. So
my question is, if there is no disincentive to asserting a
claim, if you are not going to be prosecuted for making a false
claim or for fraud, where is the disincentive to doing it?
Mr. Crocetti. Well, one of my frustrations throughout my
career is the fact that whenever there is a ground of
inadmissibility, there seems to always be an exception or a
waiver available. And as provided in my testimony, I think we
need to think differently and approach things a little bit
differently. Maybe requiring one to be outside the country for
a couple years is not quite the hardship that we have made it
over the years. And until we start really getting serious and
holding people accountable for their representation, we are
going to continue to encourage fraud because the fraudsters, if
you will, know there is a mechanism to get a waiver or an
exception or whatever.
Ms. Acer. Mr. Chairman, can--I am sorry.
Mr. Gowdy. Well, I am out of time. In fact, I am woefully
out of time. So I am just going to say this in conclusion.
Ms. Lofgren. I ask unanimous consent to give you another
minute so she----
Mr. Gowdy. Yes, but that is only so she can answer. You do
not really want to give me another minute. I am happy because
of her generosity. I am happy for you to answer the question if
you want.
I would also like you to answer this one other question,
because I do not know it, while you are answering that one.
If you abscond while you are on bond, does that impact your
credibility in a subsequent proceeding?
Ms. Acer. Let me just jump in first to just reiterate again
that fraud hurts everyone, including bona fide asylum seekers,
and we really do need to make sure that whatever measures we
look at are actually tailored to deal with fraud and do not
block innocent individuals.
I want to go back to your prosecution point, which I think
is an important one. There have been, I think, stepped-up
prosecutions in recent years and some really major ones which
send a very strong signal. They are not just dealing with
things in the past. It sends a signal in the future that fraud
will not be tolerated. So I want to agree that those who
perpetrate fraud absolutely need to be dealt with.
I want to go back to this impression that the asylum system
is somehow really easy. It is actually really difficult for
people who are in the system and people who are bona fide
refugees who go on to be granted. It is a hard system for them.
So I just want to add that one point in as well.
Oh, on the bond question. Sorry. So for individuals who do
not comply with bond, there can be a range of consequences. I
mean, the most important thing is that they actually are re-
detained if they have not complied with bond----
Mr. Gowdy. I know. I am asking whether it impacts your
credibility.
Ms. Acer. I am sorry. I was in the middle of saying that.
Sorry, sir.
Yes, indeed, it could potentially impact your credibility,
anything. If you said you are going to show up and you do not
can impact your credibility potentially.
Mr. Gowdy. Well, on an almost note of accord, we will end
with me simply making this observation. I am convinced that
everybody at this panel and frankly everyone on this dais would
move heaven and earth to help someone who is legitimately
making a claim for asylum. I am convinced of that. And those
who behaved and remained in the hearing room, I am convinced of
that as well.
But I have got to stress--at least in my district--I cannot
tell you about the rest of the country--what will undercut
people's generosity of spirit quicker than anything else is
fraud. And not only is it going to impact the fraudster, it is
going to impact people making legitimate claims if we do not do
something to get that number down as low as we can.
So with that, on behalf of all of us, thank you for your
time, your expertise, your collegiality with one another and
with the members of the panel.
Ms. Lofgren. Could I ask unanimous consent to place in the
record a statement from the United We Dream Network?*****
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*****See Appendix for this submission.
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Mr. Gowdy. Without objection.
Ms. Lofgren. Thank you.
Mr. Gowdy. This concludes today's hearing. Thanks to all of
our witnesses for attending.
Without objection, all Members will have 5 legislative days
to submit additional questions for the witnesses or additional
materials for the record.
The hearing is adjourned.
[Whereupon, at 12:09 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Material submitted by the Honorable Trey Gowdy, a Representative in
Congress from the State of South Carolina, and Chairman, Subcommittee
on Immigration and Border Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Material submitted by the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Ranking Member, Subcommittee
on Immigration and Border Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Material submitted by the Honorable Trey Gowdy, a Representative in
Congress from the State of South Carolina, and Chairman, Subcommittee
on Immigration and Border Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Material submitted by the Honorable Steve King, a Representative in
Congress from the State of Iowa, and Member, Subcommittee on
Immigration and Border Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Material submitted by the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Ranking Member, Subcommittee
on Immigration and Border Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Michael Comfort, President,
Comfort Western Enterprises LLC
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]